PRINCE GWAYI TYAMZASHE was ! born at Blinkwater in the district of Fort Beaufort on the 22nd of January, 1844. He was the eldest son of Tyam. zashe; Tyamzashe, the son of Mejana, son of Oya, of the Rudulu clan, cornmonly known as the Mangwevu. Gwayi as a boy saw all the horrors of the early Kaffir Wars, and was with his mother, Nontsi, during the terrible Nongqause cattle-killing episode, while his father Tyamzashe was a head councillor at the King’s Court. At that time Sandile was the Paramount Chief of the Xosa Tribe.

After the great armed protest of the Xosas, under Sandile and his brother Anta, Gwayi and his parents became detached from the main fighting body and eventually fell into the hands of the missionaries at Dr. Love’s mission station-now known as Lovedale. The late Mr. Goven was then in charge of the mission and he soon induced the raw native fugitives to be converted. Govan actually went so far as to pay those natives who attended infant classes. Gwayi Tyamzashe liked these classes. He was followed by many other natives. The signs of progress moved quickly. Messrs. Smith and James Stewart came to Lovedale, and Gwayi and his friends soon found themselves on the highway to civilisation and education. At all times Lovedale was open to all classes of pupils, and Gwayi found himself rubbing shoulders with European pupils, amongst whom were William Henry Solomon (late Chief Justice of the Union of South Africa), his brother, Richard Solomon, Schreiner, Grimmer and others.

Soon Gwayi qualified as a teacher and taught for some years at Gqumahashe, a village just across the Tyumie River. Just at that time Tiyo Soga was reading for theology in Scotland. This caused Gwayi to leave teaching and return to Lovedale for theology. Before doing so, however, he went in for a University examination in which Latin, Greek and Hebrew were essential subjects. This examination was above the ordinary matriculation. It was a red-letter day at Lovedale when Gwayi Tyamzashe passed this examination; flags were hoisted and the day was proclaimed a exam holiday.

Gwayi completed his Theological Course in 1874 and was immediately called to the Diamond Fields. In 1884 Gwayi and his family, consisting of his wife and three children, James, Henry and Catherine, left Kimberley for the wild north-Zoutpansberg. His journey to that part of the country was a heart-breaking one; the story of which would fill a volume. Leaving Kimberley with two ox-wagons, several milch cows and a pair of horses, he slowly made his way north. There were no roads to speak of; the country was unexploed as yet; the drifts across the rivers were mere sluits and no bridges existed anywhere; the country was still wild, and, worst of all, the Dutchmen, who occupied the Transvaal, were hostile towards the black races. When Gwayi and his caravan arrived on the Witwatersrand-as Johannesburg was then called-he was arrested for having no ” pass.” He was handcuffed behind his back and hurried off to Pretoria in front of four fiery horses of the “Zarps” (Zuid Afrikaanse Republiek Poliese). His wife, however, hurried over to Pretoria and personally interviewed Oom Paul (President Paul Kruger) whereupon Gwayi was not only released, but also given a free pass to his destination.

At Zoutpansberg Gwayi Tyamzashe opened a number of mission stations which exist to this day. He lived at Zoutpansberg for six years, and on being called back to Kimberley, he returned to the Diamond Fields. It was, however, a different Gwayi that arrived at Kimberley. He was physically a mere shadow of the former Gwayi, owing to a relentless attack of asthma which he contracted in the damp and marshy country of the Zoutpansberg. He lingered for six years in Kimberley and died on the 25th October, 1896. Prior to his death he had a serious case against the European Church Union which culminated in victory for him in the Supreme Court at Capetown.

Mr. NGCUBU POSWAYO, son of Kilili Poswayo. Born in 1880. Started his education at the mission school of All Saints, in the Transkei, afterwards at St. John’s College, Umtata, and Zonnebloem, Capetown. Leaving Capetown he went to England for higher education. After passing several examinations, he decided to take up the legal profession, and went to Lincoln’s Inn to read law. He studied. for four years when he qualified as a Barristerat-Law. Returning to South Africa he decided to practice as a solicitor of the Supreme Court. He went to Engcobo where he opened an office. In a short time he was a very busy man, and his practice increased every day. While at the height of his profession his health failed him. He came to Johannesburg Hospital for an operation, but this did not help him and he died at the early age of 46 years. Mr. Poswayo was very popular in the Cape. Very modest, he was liked and respected by Europeans and natives alike. A keen sportsman and a very religious man. He had a human heart; he was a friend of all and assisted many of the poorer natives professionally without asking for the usual fee. He believed in hard work, and was often seen ploughing in the fields. Mr. Poswayo was the fourth African barrister to qualify in England.

Mr. Mpambani Jeremiah Mzimba was the son of Ntibane Mzimba. Born at Ngqakayi, Fort Wiltshire, in 1850, and taught by his father at Sheshegu. He entered the classes at Lovedale in 1860. In May he was indentured as an apprentice to the Lovedale Printing Department. Being very religious he decided to join the ministry. Completing his apprenticeship he joined the Theological Class, and although the course prescribed for native students for the ministry in the Free Church Mission did not differ from the theological curriculum in Scotland which included a long and trying range of study in literature, philosophy, languages and divinity, he carried on diligently until he mastered the course and was ordained in December, 1875.
Before his ordination he was employed at Lovedale as telegraph operator. Mr. Mzimba’s character at school was very excellent, and this led to the Board granting him a certificate of honourable mention. As a minister the Rev. M. J. Mzimba was very successful, and so much did his work progress that towards the end of the reign of Queen Victoria, he proceeded to Scotland to raise funds for the building of churches in South Africa. On his return certain arrangements were made, but, it is said, the Rev. Lennox did not agree with him in his plans. Unfortunately a dispute arose which ended in the Supreme Court at Capetown. After this dispute Rev. Mzimba broke away from the Free Church and started on his own. He founded the African Presbyterian Church. He had a large following which encouraged him, but the Government of the day refused to recognise his organisation, and for a long time he struggled until he succeeded in gaining recognition. His work increased until he had branches all over South Africa. After his death he was succeeded by his son Livingston Mzimba as Moderator, who was educated in America. The trouble with Rev. Mzimba’s organisation, like all native religious organisations, was that he had no institution to train some of his followers for the Holy Orders, and consequently he had to ordain untrained men or send them to the institutions of other denominations for training. The result was that although he had a large number of followers, his work did not get on as smoothly as did that of churches under European supervision.

Mr. ALFRED MANGENA
Mr. Alfred Mangena was born at Estcourt, Natal, about 1879. He managed to acquire a little education, and thereafter took private studies at Capetown. He went to England and after matriculating lie studied Law at Lincoln’s Inn and was called to the Bar in 1909. In 1910 he returned to his home and was the first African Barrister at Law in South Africa. After some difficulty he succeeded in becoming a solicitor of the Supreme Court of South Africa, and opened an office at Pretoria with a branch office in Johannesburg. Commenced to practice and became very successful. There were Courts where natives could not gain admission except as prisoners or witnesses. All this Mr. Mangena fought. Mr. Mangena became very popular with the Africans throughout South Africa and received invitations from chiefs all over South Africa.  He was a fearless man, and his life was in danger more than once because of his success in cases where he defended natives against Europeans. In 1911 Mr. P. Ka I. Seme, B.A., arrived from Europe, being the second African lawyer. Together they set about defending their people in the Law Courts. In 1912 Mr. Mangena was appointed Senior Treasurer of the African National Congress. In the same year he published at Pretoria the first issue of the Advocate, a Bantu-English weekly. Owing to some difficulties this newspaper ceased to exist the following year. In 1916 Mr. Mangena married Nurse A. V. Ncobela, of Natal. In the same year he went into partnership with Mr. P. Ka I. Seme, the firm being known as Mangena & Seme, Solicitors, etc. He died at his home in Umtata, Cape Province, in 1924.

Mr. John Tengo Jabavu was born in 1859 at Healdtown. His parents, though poor, were anxious to give him some education and sent him to the day-school. He liked school and put his whole heart into his lessons. It was not long before he became one of the brightest boys in school and was only a boy when he took his
• ‘Teacher’s Certificate. Became a teacher at Somerset East and worked hard at school, his pupils taking great interest in their studies. Young Jabavu was of great assistance to the ministers, especially ‘on Sundays, and it was not long before he became a local preacher. He found great pleasure in reading good books and daily newspapers.
He apprenticed himself to a newspaper office, and did his work after school hours. He began to write articles for the newspapers which were favourably commented upon. This fired his ambition. In 1881 he became editor of the Isigidinzi Sama Xosa which was printed and published at Lovedale Institution during the time of Dr. James Stewart. Mr. Jabavu found the doors to self-improvement wide He took advantage of the school library, became active in the Literary Society and took part in the Debating Society. In 1883 passed the Matriculation Examination of the South African University. In 1885 he married Miss Elda Sakuba. Mr. Jabavu made friends with Mr. James Rose-Innes, who later became Chief Justice of the Supreme Court of South Africa. Mr. Rose-Innes saw in Mr. Jabavu a future great man, and through him and others Mr. Jabavu was able to edit and publish the first purely native newspaper under the title Inzvo Zabantsundu (Native Opinion). He opened his office at Kingwilliamstown in 1886. Mr. Jabavu was then only twenty-four years of age. He put his whole life into his work and soon his paper was known and read throughout South Africa. He became a member of the Wesleyan Conference. Took active interest in the welfare of his people. His wife died in 1900, leaving four sons and a husband to mourn their loss. Shortly afterwards Mr. Jabavu’s eldest son was sent to England for education, while the younger one became a teacher in the Cape Province.
Mr. Jabavu was highly respected by white and black alike throughout the country. He played an important part in the inauguration of the South African Native College at Fort Hare. A lover of his people, a politician, a diplomat, an educator, and a Christian gentleman. He died at the home of his son, Mr. D. D. T. Jabavu at Fort Hare in 1921. Mr. Alexander Jabavu, second eldest son of the late John Tengo Jabavu, is now in charge of the newspaper.

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Marriage Laws Pre 1972

Since the days of Roman law marriage in the Western world has been defined as the legally recognised union of one man and one woman, to the exclusion, while the marriage lasts, of all others. Polygamous unions, being fundamentally opposed to our conception of matrimony, are not recognised as valid marriages. Thus, Bantu customary unions, though by no means without legal effect (see Bantu law), are not marriages in the eyes of South African law. The same is true of a 'marriage' according to Moslem or Hindu rites, even though contracted in India or Arabia, where such marriages are legally recognised. The crucial test in each case is whether the union is potentially polygamous, in other words, whether, according to the rules of the law in question, the 'husband' is permitted to take unto himself another wife while the 'marriage' subsists. Whether or not he has in fact availed himself of this opportunity does not affect the issue.

As marriage is the foundation of the family, which is the basic unit of society, the institution of marriage has always enjoyed the special favour and protection of the law. Covenants calculated to restrain marriage or to lead to the break-up of an existing marriage by divorce or separation are invalid, as being opposed to public policy. On the same ground, conditions in general restraint of marriage in a last will are struck out. Exceptions apply in respect of restraints on the remarriage of widows and widowers and of partial restraints on marriage, such as marriage out of a particular race, religion or nationality (for instance, 'Jewish faith and race' clauses).

Espousals

In the nature of things, marriage is preceded by a contract of engagement – a contract to marry, a betrothal, espousals. Espousals do not require any formalities and may be contracted in any way: orally or by letter, by telegram or on the telephone. Minors require the consent of their parents or legal guardians. Espousals may be cancelled at any time by mutual consent. Either party may terminate the contract unilaterally on the ground of fraud or for any other good reason, e.g., the man discovers after the engagement that the woman has led a dissolute life. Impotence and serious hereditary disease are also grounds for the repudiation of espousals. The sanction for unjustified breach of promise is an action for damages. The wronged party recovers compensation for his or her pecuniary loss as well as for the hurt to his or her feelings. A promise of marriage by a married person is invalid. The mere fact that it is made conditionally upon the existing marriage being dissolved does not redeem it. The promise will, however, give rise to an action for damages if the plaintiff was ignorant of the subsisting marriage of the defendant.

In Roman law a betrothal gave no action for breach of promise, it being considered contrary to the public interest to force a person, directly or by the threat of an action for damages, to proceed to marriage if he or she no longer felt so inclined. Modern opinion is reverting to the view that breach of promise actions are, on the whole, undesirable, and they have been abolished by statute in England (1970) and several American jurisdictions, including the State of New York.

Prohibited degrees

Ascendants and descendants in the direct line – father and daughter, grandfather and granddaughter, and so forth – may not marry each other. Collaterals are prohibited from intermarrying if either of them is related to their common ancestor in the first degree of descent. Thus a man may not marry his sister, half-sister, niece or grand-niece. There is, on the other hand, no obstacle to marriage between cousins, including first cousins. As regards relations by marriage, a man may marry his deceased or divorced wife's sister, aunt or niece; but he may not marry his former wife's mother or her daughter by a previous husband. The same rules apply as between a woman and her former husband's relations.

Mixed marriages

Under the Prohibition of Mixed Marriages Act (No. of 1949) marriage is prohibited between Whites and non-Whites-Bantu, Asiatics and Coloured persons. Before that there was no legal obstacle to intermarriage between White and non White, though no machinery for the purpose existed in the Transvaal. There is no prohibition of intermarriage between the different non-White races.

The marriage ceremony

The formalities of marriage are regulated by the Marriage Act (No. 25 of 1961) and the Marriage Amendment Act (No. 51 of 1970). In order to be valid the ceremony must be performed by a marriage officer before two witnesses. The parties must be personally present – marriage by proxy is not permitted in South African law. Magistrates and Bantu commissioners are ex officio marriage officers. Clergymen must be appointed as marriage officers by the Minister of the Interior before they may perform marriage ceremonies. The parties can choose whether they want to be married in secular form by a magistrate or in religious form by a clergyman of their faith. No preliminary formalities, such as banns, notices of intention to marry, or marriage licences are prescribed. After the ceremony the parties and the witnesses are required to sign the marriage register, but omission to do so does not affect the validity of the marriage.

Minors' marriages

In Roman-Dutch law the earliest age at which a person could marry was 14 years for boys and 12 for girls, legal age of puberty since the days of ancient Rome. Today the earliest age at which a minor can legally marry in South Africa is 18 for boys and 12 for girls. A minor desirous of marrying at an earlier age must obtain, in addition to the consent of his parents or legal guardian, permission in writing from the Minister of the Interior, which is not readily granted. Boys and girls above the ages of 18 and 15 respectively, may marry provided they obtain the consent of their parents or, if they have no parents, of their legal guardian. If parents or guardians are absent or otherwise incapable of consenting, the Commissioner of Child Welfare may authorise the marriage.

Refusal of the parents can only be overruled by the Supreme Court. Lack of parental consent renders the marriage voidable at the instance of the aggrieved parents or parent. If the parents do not avail themselves of this right, the marriage holds good, but the major spouse can at no time take any financial benefit from the estate of the erstwhile minor, be it by community of property, antenuptial contract, testament or otherwise. The whole matter is regulated exhaustively by the Marriage Act of 1961.

Invariable consequences of marriage

Marriage creates a status recognised and protected by law. Its essential consequences cannot be varied by the parties by mutual agreement. Thus they cannot effectively stipulate before the marriage that they will not live together, or that the husband shall be entitled to keep a mistress, or that either of them shall give the other a divorce on request.

The husband has the final say in all matters concerning the common life, but may not enforce his decisions by applying physical restraint to his wife, nor has he, in modern law, a right of chastisement over her. As long as the marriage subsists, she shares legally his domicile, but in modern South African law she does not automatically assume his nationality.

Spouses are under reciprocal duties to support each other in illness and health. Normally, the duty to maintain his wife and family devolves upon the husband as the main breadwinner; but if he is an invalid or, owing to no fault of his, unemployed while his wife has means or is able to work, the duty of support devolves upon her. Where the husband, though able to do so, neglects or refuses to maintain his wife and children, the magistrate's court (maintenance court) will grant her a maintenance order which will be enforced, if necessary, by deductions from his wages or, in the final resort, by imprisonment.

Another invariable consequence of marriage is the prohibition of donations between spouses. This prohibition originated in Roman law and was, at one time, fairly common on the Continent, but has disappeared from most modern systems of law, though not from the South African. Contrary to widely held views, the purpose of the prohibition is not so much to protect the creditors of the spouses against fraudulent donations – the provisions of the Insolvency Act are designed for this purpose – but to protect the spouses against their own generosity. The Roman lawyers felt, rightly or wrongly, that, if donations between spouses were fully permitted, the stronger or more rapacious spouse might be tempted to enrich himself at the expense of the other. The rule prohibiting donations is of little practical importance where the marriage is in community of property. As everything belongs to both spouses in common, there is, legally, no room for a donation. The position is otherwise where the marriage is out of community of property. If one of the spouses makes a substantial donation of money, shares or real estate to the other, the donor can at any time revoke his or her gift. The same is true of a gratuitous release from a debt. Moderate donations on proper occasions – birthdays, wedding anniversaries, Christmas celebrations – are not touched by the rule. Statutory exceptions apply to life insurance and endowment policies. A prohibited donation becomes confirmed if the donor spouse dies before the donor spouse, without having revoked the gift. If the donor spouse dies first, the donor spouse can still revoke the gift.

Community of property and the marital power

In the absence of an antenuptial contract, marriage in South African law results in universal community of property and profit and loss. The wife becomes subject to her husband's marital power. Community of property and profit and loss, with subjection of the wife to her husband's marital power, was the matrimonial regime of Holland as early as the 13th century. Modern European legal systems do not have universal community of property on South African lines. England, Scotland, the majority of the states of the United States, Rhodesia, and the common law provinces of Canada have complete separation of goods. A number of countries, including France, and several states of the United States (so-called 'community-jurisdictions'), including California and Louisiana, have community of profit and loss. Several continental countries, including the Netherlands and Germany, have deferred community or participation systems. During the marriage each spouse owns and administers independently of the other whatever he or she has brought into the marriage or acquired thereafter. On dissolution of the marriage by death or divorce, there is sharing. Thus, in the Netherlands, the estates of the spouses are pooled and shared, substantially, as if they had been married in universal community. In Germany, only the profits made by the spouses during the marriage are pooled and shared. It will be seen that under such a system the wife retains her own property and independence during the marriage, but that there is participation in each other's estate when the marriage is dissolved, thus combining the advantages of a system of separation of goods with those of a community system.

As the words 'community of property and profit and loss' indicate, the community system of South African law is all-embracing. 'Whatever either spouse brings into the marriage or acquires during the marriage in any manner whatsoever falls into the joint estate: wages, fees and royalties; pensions and retirement benefits; gifts and inheritances; dividends and interest; lottery wins and gambling gains. A person who gives or bequeathes property to a married person may prescribe that it shall be excluded from the community and, where the wife is the donor, from the marital power. Special rules apply to life insurance and endowment policies which a husband has ceded to, or effected in favour of, his wife.

Together with the assets, the liabilities of both spouses, whether antenuptial or postnuptial, and however incurred, become common.

Nominally, the husband's marital power extends over his wife's person and property. As far as person goes, this means little today, except that the wife may not sue or be sued without her husband's assistance. The days when a husband could direct his wife's personal life or apply ‘moderate chastisement' to her are past. The proprietary aspects, on the other hand, are formidable. By virtue of his marital power the husband is the sole administrator of the joint estate. His powers of disposition at common law are practically unlimited. Without his wife's knowledge and consent and without being obliged even to render account to her, he may sell, give away or hypothecate (i.e. mortgage or pledge) any property, movable or immovable, irrespective of whether he or his wife has brought it into the community or acquired it for the community during the marriage. His contracts, however foolish or wasteful, are binding on her, without the possibility of redress, both during the marriage and after its dissolution.

The corollary of the husband's dictatorial powers over community assets is the legal incapacity of the wife, who is reduced to a legal position little better and in many ways worse than that of a minor. Without her husband's assistance, she cannot bind herself in contract. Nor can she effectively alienate or hypothecate community assets. Payment to her, unless it reaches her husband, does not release a debtor. There are two time – hallowed exceptions. First, by virtue of her position as manageress of the joint household, the wife can bind her husband's credit for food, clothing and other necessaries for the household and its members. Secondly, a woman who with her husband's consent carries on a public trade or profession can bind both her husband and herself by contracts and other transactions within the scope of that trade or profession.

Dark as the overall picture of the wife's subjection to her husband's powers in matters contractual and proprietary is, it is not, however, altogether devoid of relieving features. While the husband may freely make donations out of the joint estate to third persons, without requiring his wife's consent, she (or her heirs) may recover such donations from him or the donees if the donations were made by him in deliberate fraud of his wife (or her heirs), e.g., if he gave away large portions of the joint estate to his mistress or to children of an earlier marriage of his. And if the husband by his prodigality or poor administration threatens to reduce her to destitution, she may apply for protection to the court, which may make whatever order is appropriate in the circumstances:

interdict him from further administration; order separation of goods; restrain him from disposing of specified assets. In extreme cases, the husband may be interdicted as a prodigal and the wife appointed as his curatrix. If the husband mala fide or unreasonably refuses to assist his wife in a legal transaction or lawsuit, the court may authorise her to act on her own. In addition, there are now a number of statutory provisions restricting the husband's powers and increasing those of the wife. The main provisions of this kind are found in the Matrimonial Affairs Act (No. 37 of 1953). Result of the labours of the Women's Legal Disabilities Commission, appointed in 1946 under the chairmanship of Mr. Justice P. 5. Twentyman Jones, this Act is intended to provide enhanced legal status for the wife. It had been advocated in Parliament for many years by Mrs. Bertha Solomon.

As regards immovables, the Act lays down a procedure by which land and other immovable property forming part of the community which the wife has brought into the marriage, or which have been paid for out of her earnings, or which have come to her during the marriage by gift or inheritance, or which have been purchased out of the proceeds of any of the aforementioned categories, can be protected against disposition by her husband. On application by the wife or the husband, the fact that the property in question falls into one of these classes will be registered against the title – deeds. Once this has been done, the husband is no longer able to alienate, hypothecate or otherwise burden the property without his wife's written consent.

As regards movable property, the Act provides, inter alia, that the husband may not, without the written consent of his wife, collect or take earnings due to her from her employer; receive or take any compensation awarded to her in respect of personal injuries; withdraw or take any deposit standing in her name in the Post Office Savings Bank, a building society or a bank; alienate or pledge any shares held by her in a building society; receive or take any dividends on or the proceeds of building society shares; alienate or pledge any tool or implement of trade with which his wife is earning remuneration (say, her typewriter or sewing-machine). The wife's legal capacity is correspondingly enhanced. Thus, even a wife who is married to her husband in community and subject to his marital power, can, without his consent open and operate on a current or savings account with a bank, and her husband may not, without her written consent, demand from her bank particulars concerning her deposits. She still requires her husband's consent, however, before she may overdraw on her account. Though protected against the husband's dispositions, the aforementioned items nevertheless remain part of the community estate and are liable to attachment for community debts, with the sole exception of the husband's bottle-store debts.

Antenuptial contracts

By means of an antenuptial contract it is possible to exclude community of property and of profit and loss as well as the marital power, and to provide for marriage settlements. Theoretically, it is possible to insert succession clauses in an antenuptial contract, but in modern practice this is hardly ever done. It would appear that approximately a third of all marriages in South Africa are by antenuptial contract. Spouses married by the standard type of antenuptial contract are substantially in the same position as spouses married under English law – there is complete separation of goods. In order to be fully effective, an antenuptial contract must be notarially executed before the parties marry and must be tendered for registration in the Deeds Registry Office within two months of its execution. Where the marriage is contracted outside South Africa, the parties must have the contract attested by a notary or his nearest local equivalent and tender it for registration in a deeds registry in the Republic within six months of its execution. If one of the parties is a minor, the consent of his or her natural or legal guardian is required. Postnuptial contracts are not permitted in South African law. They used to be allowed in Natal, but this was changed in 1956. The court may permit the postnuptial registration of an antenuptial contract if the parties are able to satisfy it that they agreed prior to their marriage to exclude community of property and profit and loss and the marital power; that their failure to execute a formal antenuptial contract was due to excusable ignorance; and that they came to court immediately they discovered the true position.

Dissolution of the marriage by death

Where the marriage was in community of property, the surviving spouse takes half of the joint estate. The other half goes to the heirs of the first-dying spouse. Where the marriage was by antenuptial contract, the surviving spouse takes whatever marriage settlements he or she is entitled to in terms of the contract. If the first-dying spouse does not leave a will, the surviving spouse succeeds to him or her in accordance with the provisions of the Succession Act (No. 13 of 1934). There is, however, nothing to preclude a man or woman from disinheriting his or her spouse. The result may be that, unless the marriage is in community of property or there arc substantial marriage settlements, the surviving spouse is left destitute. In this event, he or she is not even entitled to maintenance out of the estate of the first-dying, however wealthy the latter may have been. The surviving spouse may remarry as soon as he or she pleases, but will normally be required to make the necessary provision for minor children of the first marriage.

Divorce

There are four grounds for divorce in South African law: adultery; malicious desertion; incurable insanity, the afflicted spouse having been detained in a mental institution in South Africa for a continuous period of not less than 7 years; imprisonment for 5 years, after a declaration of habitual criminality. Where the divorce is based on adultery, malicious desertion and, perhaps, imprisonment, the divorce court can award the innocent spouse maintenance until death or remarriage. An order of forfeiture of the financial benefits derived from the marriage may be made against the guilty spouse. In deciding to whom the custody and guardianship of minor children of the spouses is to be awarded, the courts are guided primarily by what is best for the children. Questions of innocence and guilt are of secondary importance. The burden of maintaining the minor children after the divorce falls on both spouses, in accordance with their means. After the divorce the wife, whether she be the innocent or the guilty party, is free to retain her married name or assume any surname she bore previously. Adultery used to be a crime in Roman Dutch law, but is so no longer. Nor is there anything in the law today to preclude the guilty spouse from marrying his or her paramour. The innocent spouse has, however, an action for damages against the third party with whom his or her spouse has committed adultery – often colloquially referred to as the 'co-respondent'. Normally this action is coupled with the action for divorce, but the innocent spouse may forgive his or her spouse and still bring the action for damages against the latter's paramour.

Nullity and annulment

Whereas a divorce is based on something which happened during the marriage, a decree of nullity or an annulment is granted on the ground of a defect or obstacle which existed at the time of the marriage. A decree of nullity is made in respect of a marriage which is null and void from the beginning, such as a bigamous marriage. Other examples are a marriage contracted without the prescribed formalities, a marriage contracted by an insane person, a marriage within the prohibited degrees of relationship, a mixed marriage, and a marriage contracted by a boy below the age of 18 or a girl below the age of 15 with out the consent of the Minister of the Interior having been obtained. If one party or both parties to a void marriage were bona fide – for instance, the girl did not know that the man with whom she went through a form of marriage was married – children of the union will be legitimate (so-called putative marriage).

Among the factors which render a marriage liable to annulment are lack of parental consent to a minor's marriage and duress. Mistake as to a spouse's age, name, religion, nationality, qualities or fortune, even if induced by fraud, do not render the marriage liable to annulment. Thus a man cannot have a marriage set aside if he discovers, after the marriage, that the girl who presented herself to him as a virgin was in fact a divorcee or an ex-prostitute. Nor can a woman have her marriage annulled if she finds out that the man who represented himself to her as a respectable man of means is in fact an impecunious ex-convict. A marriage may, however, be annulled at the instance of either spouse if at the time of the marriage the other party was, unknown to him or her, incurably impotent (sterility not accompanied by impotence is not sufficient); and at the instance of the husband if at the time of the marriage his wife was, unknown to him, pregnant by another man.

Separation

Separation lies somewhere between a living marriage and a divorce. In order to obtain a decree of judicial separation, the plaintiff must prove adultery or malicious desertion or show that, on account of the defendant's unlawful conduct, life together has become dangerous or intolerable to him or her. As a rule the action is based on physical or mental cruelty. A decree of judicial separation does not sever the marriage tie and does not permit adultery, but authorises the spouses to live apart. Judicial separation was taken over from the law of the medieval Church, which regarded marriage as indissoluble. Up to this day it is the only matrimonial remedy open to Roman Catholics who do not wish to offend against the canons of their creed. A voluntary deed of separation is sometimes entered into by spouses who wish to separate, but do not want to wash their dirty linen in public. Like a judicial order of separation, a deed of separation, usually (but not necessarily) entered into in notarial form, is a licence for living apart, but no more.

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Marriage Laws Pre 1972

Since the days of Roman law marriage in the Western world has been defined as the legally recognised union of one man and one woman, to the exclusion, while the marriage lasts, of all others. Polygamous unions, being fundamentally opposed to our conception of matrimony, are not recognised as valid marriages. Thus, Bantu customary unions, though by no means without legal effect (see Bantu law), are not marriages in the eyes of South African law. The same is true of a 'marriage' according to Moslem or Hindu rites, even though contracted in India or Arabia, where such marriages are legally recognised. The crucial test in each case is whether the union is potentially polygamous, in other words, whether, according to the rules of the law in question, the 'husband' is permitted to take unto himself another wife while the 'marriage' subsists. Whether or not he has in fact availed himself of this opportunity does not affect the issue.

As marriage is the foundation of the family, which is the basic unit of society, the institution of marriage has always enjoyed the special favour and protection of the law. Covenants calculated to restrain marriage or to lead to the break-up of an existing marriage by divorce or separation are invalid, as being opposed to public policy. On the same ground, conditions in general restraint of marriage in a last will are struck out. Exceptions apply in respect of restraints on the remarriage of widows and widowers and of partial restraints on marriage, such as marriage out of a particular race, religion or nationality (for instance, 'Jewish faith and race' clauses).

Espousals

In the nature of things, marriage is preceded by a contract of engagement – a contract to marry, a betrothal, espousals. Espousals do not require any formalities and may be contracted in any way: orally or by letter, by telegram or on the telephone. Minors require the consent of their parents or legal guardians. Espousals may be cancelled at any time by mutual consent. Either party may terminate the contract unilaterally on the ground of fraud or for any other good reason, e.g., the man discovers after the engagement that the woman has led a dissolute life. Impotence and serious hereditary disease are also grounds for the repudiation of espousals. The sanction for unjustified breach of promise is an action for damages. The wronged party recovers compensation for his or her pecuniary loss as well as for the hurt to his or her feelings. A promise of marriage by a married person is invalid. The mere fact that it is made conditionally upon the existing marriage being dissolved does not redeem it. The promise will, however, give rise to an action for damages if the plaintiff was ignorant of the subsisting marriage of the defendant.

In Roman law a betrothal gave no action for breach of promise, it being considered contrary to the public interest to force a person, directly or by the threat of an action for damages, to proceed to marriage if he or she no longer felt so inclined. Modern opinion is reverting to the view that breach of promise actions are, on the whole, undesirable, and they have been abolished by statute in England (1970) and several American jurisdictions, including the State of New York.

Prohibited degrees

Ascendants and descendants in the direct line – father and daughter, grandfather and granddaughter, and so forth – may not marry each other. Collaterals are prohibited from intermarrying if either of them is related to their common ancestor in the first degree of descent. Thus a man may not marry his sister, half-sister, niece or grand-niece. There is, on the other hand, no obstacle to marriage between cousins, including first cousins. As regards relations by marriage, a man may marry his deceased or divorced wife's sister, aunt or niece; but he may not marry his former wife's mother or her daughter by a previous husband. The same rules apply as between a woman and her former husband's relations.

Mixed marriages

Under the Prohibition of Mixed Marriages Act (No. of 1949) marriage is prohibited between Whites and non-Whites-Bantu, Asiatics and Coloured persons. Before that there was no legal obstacle to intermarriage between White and non White, though no machinery for the purpose existed in the Transvaal. There is no prohibition of intermarriage between the different non-White races.

The marriage ceremony

The formalities of marriage are regulated by the Marriage Act (No. 25 of 1961) and the Marriage Amendment Act (No. 51 of 1970). In order to be valid the ceremony must be performed by a marriage officer before two witnesses. The parties must be personally present – marriage by proxy is not permitted in South African law. Magistrates and Bantu commissioners are ex officio marriage officers. Clergymen must be appointed as marriage officers by the Minister of the Interior before they may perform marriage ceremonies. The parties can choose whether they want to be married in secular form by a magistrate or in religious form by a clergyman of their faith. No preliminary formalities, such as banns, notices of intention to marry, or marriage licences are prescribed. After the ceremony the parties and the witnesses are required to sign the marriage register, but omission to do so does not affect the validity of the marriage.

Minors' marriages

In Roman-Dutch law the earliest age at which a person could marry was 14 years for boys and 12 for girls, legal age of puberty since the days of ancient Rome. Today the earliest age at which a minor can legally marry in South Africa is 18 for boys and 12 for girls. A minor desirous of marrying at an earlier age must obtain, in addition to the consent of his parents or legal guardian, permission in writing from the Minister of the Interior, which is not readily granted. Boys and girls above the ages of 18 and 15 respectively, may marry provided they obtain the consent of their parents or, if they have no parents, of their legal guardian. If parents or guardians are absent or otherwise incapable of consenting, the Commissioner of Child Welfare may authorise the marriage.

Refusal of the parents can only be overruled by the Supreme Court. Lack of parental consent renders the marriage voidable at the instance of the aggrieved parents or parent. If the parents do not avail themselves of this right, the marriage holds good, but the major spouse can at no time take any financial benefit from the estate of the erstwhile minor, be it by community of property, antenuptial contract, testament or otherwise. The whole matter is regulated exhaustively by the Marriage Act of 1961.

Invariable consequences of marriage

Marriage creates a status recognised and protected by law. Its essential consequences cannot be varied by the parties by mutual agreement. Thus they cannot effectively stipulate before the marriage that they will not live together, or that the husband shall be entitled to keep a mistress, or that either of them shall give the other a divorce on request.

The husband has the final say in all matters concerning the common life, but may not enforce his decisions by applying physical restraint to his wife, nor has he, in modern law, a right of chastisement over her. As long as the marriage subsists, she shares legally his domicile, but in modern South African law she does not automatically assume his nationality.

Spouses are under reciprocal duties to support each other in illness and health. Normally, the duty to maintain his wife and family devolves upon the husband as the main breadwinner; but if he is an invalid or, owing to no fault of his, unemployed while his wife has means or is able to work, the duty of support devolves upon her. Where the husband, though able to do so, neglects or refuses to maintain his wife and children, the magistrate's court (maintenance court) will grant her a maintenance order which will be enforced, if necessary, by deductions from his wages or, in the final resort, by imprisonment.

Another invariable consequence of marriage is the prohibition of donations between spouses. This prohibition originated in Roman law and was, at one time, fairly common on the Continent, but has disappeared from most modern systems of law, though not from the South African. Contrary to widely held views, the purpose of the prohibition is not so much to protect the creditors of the spouses against fraudulent donations – the provisions of the Insolvency Act are designed for this purpose – but to protect the spouses against their own generosity. The Roman lawyers felt, rightly or wrongly, that, if donations between spouses were fully permitted, the stronger or more rapacious spouse might be tempted to enrich himself at the expense of the other. The rule prohibiting donations is of little practical importance where the marriage is in community of property. As everything belongs to both spouses in common, there is, legally, no room for a donation. The position is otherwise where the marriage is out of community of property. If one of the spouses makes a substantial donation of money, shares or real estate to the other, the donor can at any time revoke his or her gift. The same is true of a gratuitous release from a debt. Moderate donations on proper occasions – birthdays, wedding anniversaries, Christmas celebrations – are not touched by the rule. Statutory exceptions apply to life insurance and endowment policies. A prohibited donation becomes confirmed if the donor spouse dies before the donor spouse, without having revoked the gift. If the donor spouse dies first, the donor spouse can still revoke the gift.

Community of property and the marital power

In the absence of an antenuptial contract, marriage in South African law results in universal community of property and profit and loss. The wife becomes subject to her husband's marital power. Community of property and profit and loss, with subjection of the wife to her husband's marital power, was the matrimonial regime of Holland as early as the 13th century. Modern European legal systems do not have universal community of property on South African lines. England, Scotland, the majority of the states of the United States, Rhodesia, and the common law provinces of Canada have complete separation of goods. A number of countries, including France, and several states of the United States (so-called 'community-jurisdictions'), including California and Louisiana, have community of profit and loss. Several continental countries, including the Netherlands and Germany, have deferred community or participation systems. During the marriage each spouse owns and administers independently of the other whatever he or she has brought into the marriage or acquired thereafter. On dissolution of the marriage by death or divorce, there is sharing. Thus, in the Netherlands, the estates of the spouses are pooled and shared, substantially, as if they had been married in universal community. In Germany, only the profits made by the spouses during the marriage are pooled and shared. It will be seen that under such a system the wife retains her own property and independence during the marriage, but that there is participation in each other's estate when the marriage is dissolved, thus combining the advantages of a system of separation of goods with those of a community system.

As the words 'community of property and profit and loss' indicate, the community system of South African law is all-embracing. 'Whatever either spouse brings into the marriage or acquires during the marriage in any manner whatsoever falls into the joint estate: wages, fees and royalties; pensions and retirement benefits; gifts and inheritances; dividends and interest; lottery wins and gambling gains. A person who gives or bequeathes property to a married person may prescribe that it shall be excluded from the community and, where the wife is the donor, from the marital power. Special rules apply to life insurance and endowment policies which a husband has ceded to, or effected in favour of, his wife.

Together with the assets, the liabilities of both spouses, whether antenuptial or postnuptial, and however incurred, become common.

Nominally, the husband's marital power extends over his wife's person and property. As far as person goes, this means little today, except that the wife may not sue or be sued without her husband's assistance. The days when a husband could direct his wife's personal life or apply ‘moderate chastisement' to her are past. The proprietary aspects, on the other hand, are formidable. By virtue of his marital power the husband is the sole administrator of the joint estate. His powers of disposition at common law are practically unlimited. Without his wife's knowledge and consent and without being obliged even to render account to her, he may sell, give away or hypothecate (i.e. mortgage or pledge) any property, movable or immovable, irrespective of whether he or his wife has brought it into the community or acquired it for the community during the marriage. His contracts, however foolish or wasteful, are binding on her, without the possibility of redress, both during the marriage and after its dissolution.

The corollary of the husband's dictatorial powers over community assets is the legal incapacity of the wife, who is reduced to a legal position little better and in many ways worse than that of a minor. Without her husband's assistance, she cannot bind herself in contract. Nor can she effectively alienate or hypothecate community assets. Payment to her, unless it reaches her husband, does not release a debtor. There are two time – hallowed exceptions. First, by virtue of her position as manageress of the joint household, the wife can bind her husband's credit for food, clothing and other necessaries for the household and its members. Secondly, a woman who with her husband's consent carries on a public trade or profession can bind both her husband and herself by contracts and other transactions within the scope of that trade or profession.

Dark as the overall picture of the wife's subjection to her husband's powers in matters contractual and proprietary is, it is not, however, altogether devoid of relieving features. While the husband may freely make donations out of the joint estate to third persons, without requiring his wife's consent, she (or her heirs) may recover such donations from him or the donees if the donations were made by him in deliberate fraud of his wife (or her heirs), e.g., if he gave away large portions of the joint estate to his mistress or to children of an earlier marriage of his. And if the husband by his prodigality or poor administration threatens to reduce her to destitution, she may apply for protection to the court, which may make whatever order is appropriate in the circumstances:

interdict him from further administration; order separation of goods; restrain him from disposing of specified assets. In extreme cases, the husband may be interdicted as a prodigal and the wife appointed as his curatrix. If the husband mala fide or unreasonably refuses to assist his wife in a legal transaction or lawsuit, the court may authorise her to act on her own. In addition, there are now a number of statutory provisions restricting the husband's powers and increasing those of the wife. The main provisions of this kind are found in the Matrimonial Affairs Act (No. 37 of 1953). Result of the labours of the Women's Legal Disabilities Commission, appointed in 1946 under the chairmanship of Mr. Justice P. 5. Twentyman Jones, this Act is intended to provide enhanced legal status for the wife. It had been advocated in Parliament for many years by Mrs. Bertha Solomon.

As regards immovables, the Act lays down a procedure by which land and other immovable property forming part of the community which the wife has brought into the marriage, or which have been paid for out of her earnings, or which have come to her during the marriage by gift or inheritance, or which have been purchased out of the proceeds of any of the aforementioned categories, can be protected against disposition by her husband. On application by the wife or the husband, the fact that the property in question falls into one of these classes will be registered against the title – deeds. Once this has been done, the husband is no longer able to alienate, hypothecate or otherwise burden the property without his wife's written consent.

As regards movable property, the Act provides, inter alia, that the husband may not, without the written consent of his wife, collect or take earnings due to her from her employer; receive or take any compensation awarded to her in respect of personal injuries; withdraw or take any deposit standing in her name in the Post Office Savings Bank, a building society or a bank; alienate or pledge any shares held by her in a building society; receive or take any dividends on or the proceeds of building society shares; alienate or pledge any tool or implement of trade with which his wife is earning remuneration (say, her typewriter or sewing-machine). The wife's legal capacity is correspondingly enhanced. Thus, even a wife who is married to her husband in community and subject to his marital power, can, without his consent open and operate on a current or savings account with a bank, and her husband may not, without her written consent, demand from her bank particulars concerning her deposits. She still requires her husband's consent, however, before she may overdraw on her account. Though protected against the husband's dispositions, the aforementioned items nevertheless remain part of the community estate and are liable to attachment for community debts, with the sole exception of the husband's bottle-store debts.

Antenuptial contracts

By means of an antenuptial contract it is possible to exclude community of property and of profit and loss as well as the marital power, and to provide for marriage settlements. Theoretically, it is possible to insert succession clauses in an antenuptial contract, but in modern practice this is hardly ever done. It would appear that approximately a third of all marriages in South Africa are by antenuptial contract. Spouses married by the standard type of antenuptial contract are substantially in the same position as spouses married under English law – there is complete separation of goods. In order to be fully effective, an antenuptial contract must be notarially executed before the parties marry and must be tendered for registration in the Deeds Registry Office within two months of its execution. Where the marriage is contracted outside South Africa, the parties must have the contract attested by a notary or his nearest local equivalent and tender it for registration in a deeds registry in the Republic within six months of its execution. If one of the parties is a minor, the consent of his or her natural or legal guardian is required. Postnuptial contracts are not permitted in South African law. They used to be allowed in Natal, but this was changed in 1956. The court may permit the postnuptial registration of an antenuptial contract if the parties are able to satisfy it that they agreed prior to their marriage to exclude community of property and profit and loss and the marital power; that their failure to execute a formal antenuptial contract was due to excusable ignorance; and that they came to court immediately they discovered the true position.

Dissolution of the marriage by death

Where the marriage was in community of property, the surviving spouse takes half of the joint estate. The other half goes to the heirs of the first-dying spouse. Where the marriage was by antenuptial contract, the surviving spouse takes whatever marriage settlements he or she is entitled to in terms of the contract. If the first-dying spouse does not leave a will, the surviving spouse succeeds to him or her in accordance with the provisions of the Succession Act (No. 13 of 1934). There is, however, nothing to preclude a man or woman from disinheriting his or her spouse. The result may be that, unless the marriage is in community of property or there arc substantial marriage settlements, the surviving spouse is left destitute. In this event, he or she is not even entitled to maintenance out of the estate of the first-dying, however wealthy the latter may have been. The surviving spouse may remarry as soon as he or she pleases, but will normally be required to make the necessary provision for minor children of the first marriage.

Divorce

There are four grounds for divorce in South African law: adultery; malicious desertion; incurable insanity, the afflicted spouse having been detained in a mental institution in South Africa for a continuous period of not less than 7 years; imprisonment for 5 years, after a declaration of habitual criminality. Where the divorce is based on adultery, malicious desertion and, perhaps, imprisonment, the divorce court can award the innocent spouse maintenance until death or remarriage. An order of forfeiture of the financial benefits derived from the marriage may be made against the guilty spouse. In deciding to whom the custody and guardianship of minor children of the spouses is to be awarded, the courts are guided primarily by what is best for the children. Questions of innocence and guilt are of secondary importance. The burden of maintaining the minor children after the divorce falls on both spouses, in accordance with their means. After the divorce the wife, whether she be the innocent or the guilty party, is free to retain her married name or assume any surname she bore previously. Adultery used to be a crime in Roman Dutch law, but is so no longer. Nor is there anything in the law today to preclude the guilty spouse from marrying his or her paramour. The innocent spouse has, however, an action for damages against the third party with whom his or her spouse has committed adultery – often colloquially referred to as the 'co-respondent'. Normally this action is coupled with the action for divorce, but the innocent spouse may forgive his or her spouse and still bring the action for damages against the latter's paramour.

Nullity and annulment

Whereas a divorce is based on something which happened during the marriage, a decree of nullity or an annulment is granted on the ground of a defect or obstacle which existed at the time of the marriage. A decree of nullity is made in respect of a marriage which is null and void from the beginning, such as a bigamous marriage. Other examples are a marriage contracted without the prescribed formalities, a marriage contracted by an insane person, a marriage within the prohibited degrees of relationship, a mixed marriage, and a marriage contracted by a boy below the age of 18 or a girl below the age of 15 with out the consent of the Minister of the Interior having been obtained. If one party or both parties to a void marriage were bona fide – for instance, the girl did not know that the man with whom she went through a form of marriage was married – children of the union will be legitimate (so-called putative marriage).

Among the factors which render a marriage liable to annulment are lack of parental consent to a minor's marriage and duress. Mistake as to a spouse's age, name, religion, nationality, qualities or fortune, even if induced by fraud, do not render the marriage liable to annulment. Thus a man cannot have a marriage set aside if he discovers, after the marriage, that the girl who presented herself to him as a virgin was in fact a divorcee or an ex-prostitute. Nor can a woman have her marriage annulled if she finds out that the man who represented himself to her as a respectable man of means is in fact an impecunious ex-convict. A marriage may, however, be annulled at the instance of either spouse if at the time of the marriage the other party was, unknown to him or her, incurably impotent (sterility not accompanied by impotence is not sufficient); and at the instance of the husband if at the time of the marriage his wife was, unknown to him, pregnant by another man.

Separation

Separation lies somewhere between a living marriage and a divorce. In order to obtain a decree of judicial separation, the plaintiff must prove adultery or malicious desertion or show that, on account of the defendant's unlawful conduct, life together has become dangerous or intolerable to him or her. As a rule the action is based on physical or mental cruelty. A decree of judicial separation does not sever the marriage tie and does not permit adultery, but authorises the spouses to live apart. Judicial separation was taken over from the law of the medieval Church, which regarded marriage as indissoluble. Up to this day it is the only matrimonial remedy open to Roman Catholics who do not wish to offend against the canons of their creed. A voluntary deed of separation is sometimes entered into by spouses who wish to separate, but do not want to wash their dirty linen in public. Like a judicial order of separation, a deed of separation, usually (but not necessarily) entered into in notarial form, is a licence for living apart, but no more.

The Masters’ Division is a creature rich in history not surpassed by any public institution in this country. The creation of the MASTERS’ BUSINESS UNIT is a further chapter of this history.

Although the predecessors of the Masters’ Division can be found in the annals of some European countries long before 1652 the real history of the Masters’ Division in South Africa started in 1674 when the “Weeskamer” (Orphan Camber) was created. While the Master is presently a creature of statute the functions of the Orphan Chamber were up to 1714 not prescribed by statute but were founded on its compeers in Holland. In that year the Orphan Chamber prepared some regulations that were approved of by the authorities.

These regulations were in force till 1793 where after a thorough investigation was launched into the activities of the Orphan Chamber and new regulations enacted. In 1828 in a preamble the importance of the Orphan Chamber was described as follows:
“Whereas the establishment of the Orphan Chamber in this Colony has become an Institution of great public interest and utility and should therefore placed under permanent and more determinate regulations…”.

In 1834 the Master became a creature of statute. The staffing of the Masters’ Division also went through many changes. The Orphan Chamber for instance staffed by a chairperson appointed by the Governor in Council, two officials of the then authorities and two freemen. Only the secretary was paid for his/ her work. One of the officials and one of the freemen had to retire from the Orphan Chamber annually and their successors elected by the Political Council from a list drawn up by the Orphan Chamber itself.

The Orphan Chamber was restructured by ordinance in 1828 and then staffed by a chairperson and four Masters appointed by the Governor. Two of the latter had to be civil servants. This ordinance sounded the death bell of the Orphan Chamber, died in 1834 and superseded by the Master of the Supreme Court.

The functions of the Masters’ Division underwent many changes through the centuries. Initially the word “Orphan Chamber” was in deed a good description for the activities of the Orphan Chamber since its activities were more focused on minors and widows. Although many regulations pertaining to the functions of the Orphan Chamber were changed through the years major changes took place in the year 1793. With the creation of the office of the Master in 1834 the Master’s functions and duties became prescribed by statute. Initially the Orphan Chamber had, inter alia, a very personal interest in those put under its jurisdiction.

The Orphan Chamber for instance put minors under foster care and had to ascertain that those minors were brought up under strict Christian principles and received a proper education and trained in a trade. As is the case today funds of the minors could be used for those purposes. Corporal punishment by officials of the Orphan Chamber was allowed and the undisciplined had to appear before the Orphan Chamber.

Their authorities over the persons of the minors were nearly unrestricted – two orphans who time again ran away from their foster parents were enrolled in the army and sent to Batavia. Following numerous enquiries about persons who died and in view of the fact that there was no office of a registrar of deaths at that time persons who died could not be buried before the Orphan Chamber was notified of their deaths! The Guardians’ Fund was an integral part of the system since 1686. All monies belonging to orphans and absent / unknown heirs were deposited in this fund and administration fees (as well as salaries of officials till 1808) were paid from the profits made by the fund. Monies were invested on mortgage bonds and loans against securities at an interest higher than the 6% paid to account holders.

Since the Orphan Chamber considered itself a philanthropic institution donations were also made to orphanages and poor churches. It was also recorded that the then Governor, Lord Charles Somerset, even instructed the fund to donate an amount of 51 000 guild to a congregation to build a new parsonage – apparently Mrs Reverend did not like the old parsonage! Only 15 000 guild was forthcoming. Due to the fact that this fund became very ‘affluent’ the ordinary person on the street (dust track?) became mistrustful towards the fund because they apparently believed that the fund could not become so strong in an honourable way.

When the then secretary of the Orphan Chamber died in 1737 a shortfall of more than 50 000 guild was discovered in the fund. The authorities decided that the Masters of that time should be held responsible for the shortfall. Understandably they fought this decision and after a period of 15 years a truce was reached between the Masters the authorities whereby the interest earned on the funds of absent heirs used to cover the shortfall. Unfounded stories about enrichment by officials of the Orphan Chamber became the order of the day. During the period 1788 to 1791 the execution of functions by the Orphan Chamber fell in chaos.

A commission of enquiry was instituted, the then secretary dismissed and the shortfall of more than 167 000 rix-dollars recovered from his estate. In view of the fact that banking institutions were foreign at that time, the monies of the fund not invested were kept in an iron trunk with three sets of locks. Three different officials kept the keys. However, this arrangement did not prevent the authorities of that time to raid the trunk on two occasions to cover the shortfall on the government’s budget! The control over the liquidation of sequestrated estates befell the Master also in 1828.

Before that time such matters were under the control of the courts (till 1803), the “Desolate Kamer” (1803 to 1819) and “sequestrator” (1819 to 1828.) The assessment of succession duty became the duty of the Master in 1864. It is common knowledge that the Voortrekkers of that time were not fond of the then authorities and as they trekked from under the auspices of the British authorities they founded their own Orphan Chambers even while on trek The office of “Weesheer” was a well sought after position and many well known personalities of those times acted as “Weeshere.”

At the establishment of the Union of South Africa in 1910 four different sets of control over the administration of estates existed. A so called unified act was enacted in 1913 which act was in operation till 1967 when the current act came into effect. Even today no unified act exists – the next chapter to be written in the long history
of the Masters’ Division.

(Acknowledgement: J H Jordaan – Master’s Office Pretoria)

An excerpt from the thesis “British Policy Towards the Malays at the Cape of Good Hope 1795-1850)

By Ghamim Harris B.A. (UCT) M.A. (U. W. Wash.)

The building of mosques was one of the most important activities of the Malay community at the Cape of Good Hope. Very few accounts, except that of Rochlin (1), have been written to examine this aspect of the development of Islam at the Cape. In recent years an excellent attempt was made by Bradlow and Cairns, on the Muslims at the Cape, with information on the Auwal mosque, (2) which other contemporary writers (3) have ignored.
There is no documentary evidence that an attempt was made to build a mosque before 1790. There is evidence that the Muslims at the Cape made an attempt to build a Mosque in the late 1790′s. The invasion by the British in 1795 and the Dutch defense of the Cape gave the Muslims the opportunity to enlist the support of the governing authorities to grant them permission to build a mosque. The Dutch authorities before 1750 did not condone the spread of Islam; they were only interested in converting slaves to Christianity. However, this all change with the publication of Van der Parra’s Plakaat, or Code of Laws (4); the Dutch followed more tolerable attitude towards Muslims at the Cape and in the East Indies. This action may have fostered the development of a positive attitude towards Muslim community in Cape Town.

The Malays had always held their religious services in prayer rooms set aside in the houses of imams. They now saw a changed attitude, which may lead to the building of a mosque.
The first literary reference to any kind of mosque was made by Thunberg:

On the 20th of June (1772), the Javanese here celebrated their new year. For this purpose they had decorated an apartment in a house with carpets, that covered the ceilings, walls and floor, At some distance from the furthest wall an altar was raised, from the middle of which a pillar rose up to the ceiling, covered with narrow slips of quilt paper and gilt alternately; from above, downwards ran a kind of lace between the projecting edges. At the base of this pillar were placed bottles with nosegays stuck in them. Before the altar lay a cushion, and on this a large book. The women, who were still standing or sitting near the door, were neatly dressed, and the men wore nightgowns of silk or cotton. Frankincense was burned. The men sat crosslegged on the floor, dispersed all over the room. Several yellow wax candles were all lighted up. Many of the assembly had fans, which they found very useful for cooling themselves in the great heat necessarily produced by the assemblage of a great number of people in such a small place. Two priests were distinguished by a small conical cap from the rest, who wore handkerchiefs tied about their heads in the form of a turban. About eight in the evening the service commenced when they began to sing, loud and soft alternately, sometimes the priest read out of a great book that lay on the cushion before him.

I observed them reading after the Oriental manner, from right to left, and imagined it to be the Alcoran they were reading, the Javanese being mostly Mohamedans. Between the singing and reading, coffee was served up in cups, and the principal man of the congregation at intervals accompanied their singing on the violin. I understood afterwards that this was a Prince from Java (5) , who had opposed the interest of the Dutch East India Company, and for that reason had been brought from his native country to the Cape, where he lives at the Company’s expense. (6)

Writing about the same time as Thunberg was at the Cape, George Forster, wrote of the Malays that: “A few of them follow the Mohommedan (sic) rite, and weekly meet in a private house belonging to a free Mohommedan, in order to read, or rather chant several prayers and chapters of the Koran.” (7)

The above two quotes support earlier testimony that Malays owned property and that the Dutch had become more tolerant after 1750. The Dutch tolerated the practice of Islam, while denying official recognition. In an earlier chapter it was pointed out that some plakaats were not really enforced, although they remained on the statute books.
The free Malays obtained the right to own land. Not necessarily because of changes in the legal system, but de facto, by the purchase of property, this was legally registered in the name of the owner. This is an acknowledgement that they had the right to purchase and own real estate. Moodie mentions many Black Free Burghers who owned considerable property. (8)

Since many of the Free Blacks were Malays, it is logical that many Malays owned real estate. In a footnote Moodie observed, “The opinion that the right of Burghership was an exclusive privilege of the Whites, seems to have no foundation in law, …” (9) Another early writer, who visited the Cape in 1799, Mirza Abu Taleb Khan, wrote “… among them I met many pious Mussulmans, several of who possessed considerable property.” (10) The records at the Deeds Office in Cape Town, supports the fact that many Malays owned property in the central and upper part of the Cape Town during the first two decades of the administration of the British Government at the Cape of Good Hope.

On the other hand, according to Commissioner de Mist (11) and Theal’s commentaries on the administration of the Batavian Republic, (12) the Malays did not enjoy the freedom to worship in public. Public worship also included the right to build a mosque and to use it as a public place of worship. For the liberal de Mist, imbued with the spirit of “Liberty, Equality, and Fraternity,” of the French Revolution, there was far too much opposition on the Council of Policy for him to extend freedom of religion to anyone, other than the members of the Dutch Reformed and the Lutheran Churches. The Batavian government at the Cape of Good Hope was not in control long enough to enforce their liberal ideas nor did they have the support of the majority of the white inhabitants.

In the late 1790′s some Muslims, among them Tuan Guru (Imam Abdullah Kadi Abdussalaam), and Frans van Bengal petitioned the British authorities for a mosque site, but were refused. Barrow wrote, “… The Malay Mohomedans (sic), being refused a church performed their public service in the stone quarries at the head of the town. (13)” This statement by Barrow has not been corroborated by any other documentary evidence.
A statement by Samuel Hudson, who was chief clerk of the customs, confirmed the fact that permission was granted to build a mosque. Samuel Hudson was a keen observer of events and gives a graphic description of the people, their attitudes and events at the Cape during in the period from 1798 to 1800.

The heads of them (Muslims) have petitioned the government and obtained permission to erect a church or mosque for celebrating their public worship, so that in a few months we shall see a temple dedicated to Allah and the Mohametan religion openly professed. (14)

Theal stated that The Muslims petitioned General Janssen for a mosque site. This was granted because of the impending war against Britain. Although permission was granted for the building of a mosque, the actual building did not begin, because of the invasion and occupation of the Cape by the British. Later the Muslims building on this strength again petitioned the new British Governor Sir George Yonge to build a mosque. This was their petition:

To His Excellency the Right Honourable Sir George Yonge, Baronet, and Knight of the Most Honourable Order of the Bath, one of His Majesty’s most Honourable Privy Council, Governor and Commander in Chief of His Majesty’s Castle, Town and Settlement of the Cape of Good Hope in South Africa and the Territories and Dependencies thereof, and Ordinary and Vice Admiral of the same.

The most humble Petition of the inhabitants of Cape Town professing the Mohometan faith:

The aforesaid humble Petitioners beg permission to approach your Excellency with all possible humility, and to represent to your Excellency that they labour under the greatest distress of mind by having no place of worship in which they may pay their adoration to God, conformably to the principles of their religion. They assure themselves your Excellency will admit nothing conduces so much to the good order of Society as a due observance of religious worship, and though they trust it will be allowed them that few enormities have been committed by the persons subject to your Majesty’s Government who profess their faith, yet they believe their being by your Excellency’s paternal indulgence furnished with the means of regular worship, that the manners and morality of their brethren will be greatly improved, and that they will thereby become more valuable members of society. They therefore implore your Excellency to grant then a little spot of unoccupied land of the dimensions of one hundred and fifty squareroods whereon to erect at their own expense a small temple to be dedicated to the worship of Almighty God. Your Excellency knows that the form of the religion requires frequent ablutions from whence it is indispensable that their mosque should be contiguous to water. A suitable spot is situated at some distance above the premises of General Vanderleur, and they humbly conceive there will be no objections to their little temple being there placed. They throw themselves at your Excellency’s feet, and beseech you to their humble and pious solicitations, and if your Excellency is pleased to give a favourable ear to their Petition they will by their conduct demonstrate they are not unworthy of your Excellency’s indulgence and protection.

And your Excellency’s humble petitioners will as in duty bound ever pray, etc., etc., etc.

Signed by “Frans van Bengal,” for himself and the rest of the inhabitants professing the Mohametan faith. (16)

The petition was signed by Frans van Bengalen in Arabic.
The request was approved by the Governor Sir George Yonge on January 31, 1800. Sir George wrote over the petition in his handwriting, “Approved.” ‘That was pending a report being prepared by the Proper Officer regarding the land described in the petition. Signed: ‘in G.W. Yonge, Government House, Jan’y 31 1800.’
On February 1, 1800, the Colonial Secretary, Andrew Barnard, wrote to the President and Members of the Burgher Senate:
Castle Cape of Good Hope
1 February 1800

Mr. President and Members of the Burgher Senate:
Gentlemen:

I am commanded by His Excellency the Governor and Commander in Chief to send you the enclosed petition from the Mohametan (sic) inhabitants of this place requesting that a piece of ground may be granted them for the purpose of erecting a place of worship thereon. His Excellency therefore desires that you will depute two of your members to examine the ground and report thereon if it may be granted without injury to the public or any individual.

I am, Gentlemen,
Your obedient servant, Signed A. Barnard. (17)

Unfortunately there is no record that the Burgher Senate inspected the ground or sent the Governor a report either approving or disapproving the request. Opposition by members of the Burgher Senate may have been responsible that the Muslims did not receive permission to proceed with the building of a mosque. By that time the Batavian Republic had taken over the Cape under General Janssens.

During the Batavian period form1803 to 1806, the Malays again petitioned for permission to build a mosque. Janssens true to his liberal attitude readily agreed. The Batavian administrators had a greater sense of tolerance than the Dutch East India Company officials towards the Malays, but they were also realists since they needed the assistance of the Malays to defend the Cape against the British. The mosque site was granted, on the condition that the Malays commit themselves to defend the Cape militarily (18). Janssens thereupon formed the Malay Artillery. The officers trained them to be a very efficient fighting force. However, before Janssens could execute this promise, the British occupied the Cape in 1806. The Malay Artillery fought bravely to resist the invaders that General Baird with no hesitation confirmed the promise made by Janssens. Theal noted:

The Mohamedan religion was never prohibited in South Africa, though during the government of the East India Company people of that creed were obliged to worship either in the open air or in private houses. Permission to build a mosque, which was granted without hesitation, and a commencement was about to be made when the colony was conquered by the English. General Baird confirmed the privilege granted by his predecessor, and very shortly there was a mosque in Cape Town. Another was build during the government of Lord Charles Somerset. (19)

The initial mosque may have been built in the stone quarry. This is located near Chiappini and Castle Streets. Little evidence remains of this mosque. This mosque could have been a temporary building. Since no land was granted to the Muslims to build a mosque, Somerset had noted later that the governor had the right to grant citizenship and to issue land grants to any person or group of people. Somerset granted the Malays permission to build a mosque. This mosque was the Auwal Mosque. Unfortunately this led to a disagreement in the Malay community regarding the leadership or the appointment of an imam at this mosque.

Tuan Guru (Imam Abdullah) died in 1807. His death resulted in a major dispute within the Malay community. According to letters written to the editor of the South African Commercial Advertiser, Tuan Guru did not want Jan van Boughies to succeed him as Imam.

Cape Town, 17th Feb., 1836.

Sir, – I present you my best compliments, hoping that you will hearken to my prayer. Sir, I have seen in the paper that they published, that my father, Imaum Abdulla, did not raise Achmat, who is Imaum now. I can assure you Sir, that my father called Imaum Achmat in, and made him promise that he would take care of me and of my brother, according to my late father’s wish; and therefore I wish to state to you the truth if I am called upon for the circumstance: but, Sir, you do not think it is pleasant for me to hear these uncomfortable circumstances. I can assure you, that my father having given the situations over to Imaum Achmat, so he acted according to my father Imaum Abdulla’s wish: and I can assure you that since my father’s death, Imaum Achmat treated us two as his own children; in fact, he could not have done better towards us; and may I wish that he may live twenty years longer in this world, for his is like a father and mother to me; my whole power is from him. Sir, I beg leave to say, also, that it is my place to stand at the head of all, because I had to promise my own father Imaum Abdulla, that we were not to stand before we were of the age of 40 years: but, Sir, because I am not studied through the books, therefore I gave it over to Imaum Achmat until I shall be able to take his place. And I can assure you that none of the others ever assisted me since my father’s death – neither Abdul Wassa, nor Jan of Bougies; as for Manzoor, I don’t count him at all – he is nothing.

And I wish, Sir, that the Almighty God will never change my heart from that church, or from Imaum Achmat, and May I wish that no one will bury me but Imaum Achmat, and myself had to promise my brother, on his dying bed, (my emphasis) never to leave Imaum Achmat, and that Imaum Achmat is to teach me exactly like my own brother. And therefore I shall stay with him as long as I live, please God that he may see me on the righteousness of the world. Honored Sir, may I pray of you that you will do justice to me and to Imaum Achmat, and may I hope that you will see into the case, whether it is justice. And may I pray to the Almighty God that your heart will be good enough to do what you can for me and my father Imaum Achmat.

I am Sir, your most obedient servant.
Prince Abdul Roove. (20)

This is the first evidence of a major split in the Malay community. Although most services were previously conducted in the houses owned by the Free Malays, before the building of the first mosque, some services were still conducted by other imams in their own homes. Many mosques were built at the death, of an imam, because the congregation could not agree on a successor, or if a successor was chosen an opposition faction would break away to form their own group and build a mosque. There is evidence in the Cape Archives of two major civil cases questioning the right of certain persons to be imams. (21)
PALM TREE MOSQUE or Langar:
This split in the Malay communtiy occured in 1807. Jan van Bhougies and Frans van Bengal broke away from Guru’s congregation to form a new congregation.
Since Tuan Guru stated quite clearly, according to Prince Abdul Roove’s the letter to the editor of the South African Commercial Advertiser, that he did not want Frans van Bengal as the imam of his congregation.
The free Malay community in Cape Town was growing rapidly in Cpe Town and numbered 1,130 in 1806. (22) By 1811 the number of Muslims would have been as high as 1,500, not counting the slaves. It is quite obvious that one mosque would have been too small to meet the needs of all the Muslims.
In 1811 the land on which the Auwal Mosque is located was donated to Tuan Guru’s congregation for the building of the first mosque.

Immediately after the death of Tuan Guru Jan van Boughies and Frans van Bengal (Frank) purchased the house in Long Street and took legal transfer of the property on November 30, 1807. The upper floor of the two-storey house was converted into a large prayer hall or langar. (23)

This was the first time that a house was converted for use as a mosque, since imams formerly used rooms in their homes, which was set aside as a prayer room. Because this house was located in “die Lange Straat,” houses that were later converted as mosques were called, “Langar.”
This has been the popular interpretation of the origin of the term. However, subsequent research discovered a much more plausible explanation of the use of the term “langar” at the Cape to describe places of worship which were not mosques. The Encyclopedia of Islam provides the following description.

In the Dutch Indies, two kinds of mosques have to be distinguised, the mosque for the Friday service (Jumah) – these alone were called mosque (masagijid, also mistjid) – and simple houses of prayer. This second category is found all over the country, especially in smaller villages and owes its origin to private initiative and partly to public efforts; they have native names (langar [Javan], tajug [Sum], surau [Malay]). The langar, or whatever it may be called, of the village, is a centre at which the salat (prayers) can be performed, but it also serves other purposes of general interest. The upkeep of the building is the affair of the community and in particular one of the tasks of the religious official of the village. The upkeep of the other langars, erected by private individuals , is left to them. The building stands on its own site and is maintained by the founder or his descendants. The owner, cannot, refuse admission to strangers who desire to use it for salat or as shelter for the night. Such private chapels are always found near Mohammadan seminaries (Jav. passantren). We sometimes find that these langars are endowned as as wakf (Jav wakap). The village langar on the other hand has a more public character.

The Mosques, i.e. the masjid djami, are found in larger places usually in those which are also centres of administration. Their erection and maintenance is regarded as a duty of the Muslim community. (24)

In 1811 Burchell noted that, “The Malays have also a house dedicated and supported by them. This latter building is nothing more than a private dwelling house converted to that use.” (25) This information refers to the house of Jan van Bougies and Frans van Bengal in Long Street. In 1811 Frans van Bengal left Cape Town permanently and made Jan van Bhougies the sole owner and imam of the mosque in Long Street. This house was then transferred to the sole ownership of Jan van Bhougies. (26)
Although the legend on the door of the house that is home to the Palm Tree Mosque says 1777, that date refers to when the house was built, not when it became a mosque or a langar.

One has to consider Jan and Frans visionaries and persons committed to the religion and their principles. They were aware of that the population was growing and and that the Malay community did not have the financial resources to build a mosque, so they literally put their money where their mouths were.

Frans van Bengalen was involved in the military when he assisted the Dutch against the British. He was the Javaansche Veld Priester in the “Auxillarie Artillerie.” We know that he witnessed the translation of Tuan Guru’s will from the Arabic (Malayu written in Arabic characters) to Nederlands. The original will was copied, by hand, in the presence of Frans van Bengalen on May 2, 1807. The other witnesses to this signature, was a person by the name of Watermeyer and the other witnesses were Enche Abdul Malik and Enche Abdul Wasing. (27)

Frans van Bengal was called a “Field Priest” in the street directories of Cape Town. He was an important personality at the Cape Malay community. He, together with the French officer, Madlener, led the Javanese artillery at the Battle of Blaauwberg in 1806. The other mention of Frans was in the records when he requested to manumit his slave, February 1789. (28)

Frans was one of those industrious slaves, who worked hard to accumulate his savings. By dint of good behaviour and determination and hard honest work to free him from the drudgery of slavery he bargained with his master for a price for his freedom. He was determined to raise the agreed amount of money, which he did and thus paid for his freedom. He continued with this attitude by raising more money, to become a fruit dealer and a fish seller. A few years later he purchased two slaves and a boat and furnished his house as those of other free Malays.

During this time slaves were apprenticed by their masters to become tradesmen. After they became qualified they were hired out to bring in a share of their labour to their masters. They were allowed to keep a portion for themselves. In this way many slaves were able to purchase their freedom.

Frans made it clear to his slaves that should one of them decide to embrace Islam, then that slave would be manumitted. He also made a condition with them that if they serve him faithfully over a specified period they would be freed and given sufficient money to start their own businesses. He was an honest man who kept his word. When the slave did not serve him faithfully, he was told, he would be sold. Several slaves received their liberty from him in this way. Business was good for Frans, and when the English took over the Cape in 1795 he was held in high esteem by the captains at the station, who recommended him as an honest person, who received work for several thousand rix-dollars at a time. Because of his stature as a respectable and honest businessman he made friends amongst the influential people of the Colony, like Admiral Sir Roger Curtis. He had become rich and deserved his honest gains. He was also instrumental in helping the Muslim community receive a grant of land on Lion’s Rump as a cemetery. Frans was often seen, when he was free from his numerous business endeavours using his leisure time working with his slaves building a wall around this cemetery to keep out the cattle that was always grazing at this sacred spot.

He intended to leave the Cape and had thus made over all his property to his wife and adopted children, and was determined to perform the pilgrimage to Mecca and to visit the grave of the Prophet Muhammad (O.W.B.P.) He had made several applications to captains of ships going to the east but have not been successful, until later in 1811, when he sold his half share in the Long Street Mosque to Jan van Bhougies and left the Cape permanently.
He married Mariam. At the time of their marriage, which happened sometime during the 1770′s? The name would have been Nederlands with an appelation “van de Kaap”. They had one son.

Frans’ name first appeared in the records when he manumitted his slave Februarij in 1789. He also signed the petition to Governor Janssens in 1794 for a mosque site, before the British occupied the Cape. He lived at 21 Longmarket Street, before he moved to Long Street.

Frans van Bengalen’s partner in the purchase of the Palm Tree Mosque was Jan van Boughies or rather, Enche Rajap Boughies. His will stated that he was a free man and his wife, Samida van de Kaap, a free woman. He was another one of those persons of whom there are many legends generated in oral history and void of documentary evidence. Jan van Bhougies was not White. The appellation “van Bhougies” was used because he came from Bhougies, in the East Indies.

The opinion that he was white was because his house was the first house in Long Street to have had a prayer room set aside as a mosque. Jan van Bougies owned this house at a time when Malays weren’t generally allowed to own land. Jan van Bougies was the only other person, besides, Tuan Guru, in South Africa to have transcribed the Quran from memory. The last page of the Quran, written in Malayu with the Arabic script, indicated that his monumental task was completed after Assar on the 14th day of Jamaadiel Thani (29) in the year of 1218 A.H. (30) of the Prophet (O.W.B.P.) (31) by Enche Rajab Bougies (Jan van Bougies), son of Jafaar Abu Nya Yakiem. The Quran (32) was passed on to Imam Mammat, (33) who was the successor of Jan van Bougies (Jan van Batavia).
The date corresponds to approximately September 30th 1803 A.D and the translation was made by Hajjie Achmat Brown.

Jan van Bhougies died in 1845, at the age of 112. This age must have been according to the Islamic calendar. This was quite an achievement to live to such a ripe old age. His will made in 1811 he described himself as a free person. He was at that time a man of property who accumulated enough money to have a half share in the purchase of the Long Street property, of which he later assumed full ownership. In 1848 his wife, Samida van de Kaap made her will in which she stipulated that the house in Long Street, used by her late husband, Jan van Bhougies, as a Mohammedan church should be left to the then priest, Maamat van de Kaap, elders, and deacons of the Church of Jan van Bhougies. After their deaths it shall not be sold, pawned or rebuilt, and it will remain the sole property of the Mohammedan congregation under the name of The Church of Jan van Bhougies. Jan van Bhougies also owned a house at 19 Long Street, which was worth £300 at that time. This is quite a princely sum of money in 1845. The administration of his estate was ordered by the Supreme Court. The file on his estate was closed on 11th July 1872.

Samida’s will transferred the property in Long Street, which housed the Church of Jan van Bhougies to Maamat, who was the sole survivor of all the persons named in the will, and who was then the imam.
Samida’s will led to a protracted civil case which, commenced on February 26th 1866, when the case of Ismail and others, Imams, Gatieps and Bilals of the said church came before Justice J. Bell.

“Mammat, the priest who was a member of the corps, was wounded in the battle.” (34) He died at the age of 104 in 1864. His obituary, in a local newspaper, said: “He was much respected by the Malay population, and deservedly so, having led a good life, and devoted his services to the cause of his religious calling with credit to himself and satisfaction to those with whom he came into contact.” The age is most probably according to the Islamic calendar. According to the Gregorian calendar he would be over 100 years old. He was listed in the street directories of Cape Town between 1811 and 1834 as a fisherman.
When the Javanese artillery was formed in 1804, Imam Maamat served under Madlener and Frans van Bengal, at the Battle of Blaauwberg. He died at the age of 104 in 1864 and his obituary, in a local newspaper, said: “He was much respected by the Malay population, and deservedly so, having led a good life, and devoted his services to the cause of his religious calling with credit to himself and satisfaction to those with whom he came into contact.” (35) He was listed in the street directories of Cape Town between 1811 and 1834 as a fisherman.

In 1862 Mahmat executed a deed, based on the will, appointing the defendants to be the imam, Gatieps and Bilals of the Church of Jan van Bhougies. However, he gave himself the right to dismiss any of those persons and appoint others in their stead. He also stated that the house should be transferred to those persons who were last mentioned in this deed and who were still living. Mamaat died in 1864. Between the transfer in 1861 and Maamat’s death, the plaintiffs, left the congregation, because of a dispute with Imam Maamat. According to the evidence the defendant, Ismail, performed all the duties of the Imam, because Imam Maamat was not able to perform those duties due to infirmity. He performed these duties with the full consent and support of the congregation.

The court held that Imam Maamat did not have the power to make the appointments by deed. Under the circumstances they were entitled to be held as duly appointed officers of the church and would be entitled to hold the premises in trust for the congregation. The plaintiffs also, did not lose their rights when they left the church to avoid confrontation with Imam Maamat, and were still entitled to join the service and the congregation at any time they desired. The judge also stated the both custom and law was proved that the senior Gatiep would succeed the deceased as imam. Lastly there is no provision in law or in custom that the imam has the sole right to appoint anyone to succeed him as imam.

The dispute in the mosque occurred when Gatiep with the greatest seniority, Hajjie Danie, returned from a pilgrimage to Mecca and started a campaign to change the manner in which the services were to be conducted. He obtained the key to the mosque and immediately excluded Imam Maamat from the mosque. Imam Maamat took legal action against Danie and others to re-instate him as imam and to have the keys return to him. This action resulted in Imam Maamat being return to his position as imam, which restored his control over the congregation. Danie and his congregation left the Mosque of Jan van Bhougies to establish their own “langar” in a private house. Maamat executed a second deed appointing Ismail as his successor and confirmed the other defendants in their previous positions as Gatieps and Bilals. Danie was the next senior Gatiep and Ismail was the Gatiep next in succession. This action effectively prevented Danie from again usurping the role as imam.

He died intestate, only a death noticed was filed. The death notice was filed on March 27, 1871. On March 27, 1871 an edict was published for a meeting to be held on May 9, 1871 regarding the Estate Late Imam Maamat. On June 9, 1871 the minutes of the meeting indicated that Letters of Administration was granted to Gatiep Moliat as Executive Dative with Kaliel Gafieldien, Mishal Kalieldeen, William Humphrey and Arthur Crowley as sureties. The liquidation account was filed on July 15, 1872.

Auwal Mosque:
Saartjie van de Kaap, the wife of Imam Achmat, who was one of Tuan’s Guru’s Ghateebs (36) donated the land in Dorp Street (Wallenberg) to build the Owal Mosque.

In 1811 Imam Achmat and Prince Abdul Raouf took over a three lot parcel of land on the corner of Buitengracht and Dorp Streets to build a mosque.(37) The site was owned by Saartjie van de Kaap. Her name indicates she was born at the Cape, because slaves were given names in that manner during the early reign of the D.E.I.C. The property was given to the Muslim community in perpetuity. She was the first female Malay land-owner in Cape Town. She gave the land as a gift to the Muslim community for the building of a mosque. The mosque (38) and a house were built on this site. The house was to serve as a rectory for the imam. Another house was added later on the site; on the corner of Buitengracht and Dorp Streets. Imam Achmat in his evidence, given to the Governor in 1825, confirmed the existence of this mosque. (39) The Auwal Mosque is regarded as the first mosque built in Cape Town. At this time it was not called the Auwal Mosque, it was called the Buitengracht Mosque. This mosque was built before 1814. General Craig gave the Malays permission to build this mosque. Contrary to popular opinion, and the date on the minaret, that the mosque was built in 1840, it was built earlier before 1814. It was built for Tuan Guru’s son, Abdul Raouf. However, Imam Abdul Raouf did not immediately assume leadership of the congregation. He only became imam on reaching the age of 40. (40) Imam Achmat was not to become imam after Guru’s death. However, he did become imam before Abdul Raouf reached the age of 40.

The land on which the Owal (Auwal) mosque is located and the adjoining house, is still registered in the name of Saartjie van de Kaap according to the records at the Deeds Office in Cape Town. The above property was first registered in the name of Saartjie van de Kaap on 13th February, 1809.

The properties were originally registered in the names of Douw Steyn. On December 16, 1777 they were transferred from the Estate of Douw Steyn to Jan Minnie, who later transferred the properties to Coenraad Frederick Faasen on September 30, 1784. Faasen transferred it ten years later to Coridon of Bengal on September 26, 1794. He appears to be the first Free Black owner of the property and may have set a trend for the acquisition of nearby properties by Muslims. Cathryn, also a Free Black, inherited the properties from her husband and on his death, became the sole owner of the property. Although Saartjie van de Kaap was already married to Imam Achmat the property was transferred to Saartjie in her maiden name. This didn’t make a real difference since Muslim marriages were not legally recognized. On February 13, 1809 Cathryn transferred the property to her daughter Saartjie van de Kaap.

Saartjie van de Kaap was an independent and strong willed lady who was able to run a household, raise seven children and run her own business at the same time. She has much to be admired when one considers the period during which she lived. The African Court Calendar and Almanac of 1811 listed her as owner of the Preserved Fruit Shop at 2 Boom Steeg. She also listed her as washerwoman at 28 Buitengracht Street. Another listing shows her as the owner of a retail shop at 20 Keerom Street. Her husband, Imam Achmet van Bengalen was listed as a Malay priest living at 42 Dorp Street. In 1821 she was listed as a seamstress at 2 Spin Steeg. Imam Achmet was listed in 1830 at 40 Dorp Street. The information indicates a lady with varied interests and business who was quite an entrepreneur for her day. It could have meant she owned these businesses at different periods, since that the family address was consistent with the location near the Owal Mosque in Dorp Street.

There still exists a belief that Saartjie van de Kaap was White. This was because of the official government position that only Whites or baptized Free Blacks could own property, both Cathryn and Coridon of Bengal were neither, although they still acquired freehold rights and became the registered owners of the property. Both Saartjie and Coridon were Muslims. They were able to purchase the properties and had it registered in their names. The information of the street directories indicate she was a woman with strong business acumen and was continually exploring new business opportunities. This act may have been responsible for her being thought of as a White person. It is rather unfortunate that the oral history and the myths surrounding the acquisition of these sites are not supported by documentary evidence. The other myth is the site was taken over by the Muslim congregation as early as 1794, when Coridon of Bengal bought this site.

Saartjie van de Kaap left the properties in her Estate to the Muslim community to be used as a mosque “as long as the government of the colony should tolerate the practice of the Mohammadan religion.”
She was blessed and fortunate to witness the building of a mosque on that site during her lifetime. According to Saartjie’s will there were four daughters, Noran, Somila, Jumie, and Rosieda and three sons, Mochamat (Muhammad), Hamien and Sadiek. Hamiem became an imam later. He was one of the signatories of a petition to Governor regarding the Khalifa.

It is interesting to note that many Muslims, whose last names was their father’s first name, thus Mochamat became Mochamat Achmat, born 1837, who in turn was the father of Gamja Mochamat Achmat, who died in 1915. This also follows the Islamic tradition but leaves out the “Ibn” (son of appellation). The other problem that one faces with the names of these individuals is that the White clerks who recorded there names on official documents had no idea how to spell them and would write the name as it it sounded to them. Another reason was the standard of literacy of these Muslims. They were not literate in Nederlands or in English so that they had to make a cross on official documents and were not always able to verify the correct information contained in those documents. The majority of them who left estates and wills, signed their names in Arabic, but had to trust their attorneys that they would implement their wishes correctly.

The following letters give a further insight into the problems of the Muslims community regarding the Imam at the Owal mosque.

Honoured Gentlemen,

I fall at your feet and entreat your forgiveness for thus intruding on your time, but I feel it my duty to add a few words. I can declare that Prince Emaum Abdulla, when he became weak, made Rujaap Emaum; who did not live long, at his death Prince Emaum Abdulla made Abdulalim, Emaum. I can also declare that before the death of this Prince, he sent for Achmat, and fully explained to him our Laws and Regulations, which Achmat swore to follow and never alter, it was also the wishes of this Prince – that Achmat would assist Abdulalim in performing his duties, this Emaum being very weak, and that Achmat would not leave him so long as he lived, which orders Achmat observed, until Emaum Abdulalim’s death. At the death of Emaum Abdulalim Serrdeen became Emaum; and at his death Achmat became Emaum. Before the death of the Prince Emaum Abdulla, he said to me and many other of his scholars – that it was his wish that we should all go to Achmat, and remain with him, and he would instruct and direct us in all things necessary which I did, and still remain with him.

This letter was signed by Abdolbazier. Similar information was contained in another letter written by Abdol Barick. (42)

Honoured Gentlemen.

I declare that when I was a scholar of Prince Emaum Abdulla, there was no church for our religion but afterwards there were so many Islams in the Cape that it was necessary to have a church; so Prince Imaum Abdulla made a church of the house of Achmat, which still stands; the second (Imam after) of Prince Imaum Abdulla was Rujaap, and I was a scholar of the Prince E. Abdulla. About this time Emaum Rujaap died; at which period Prince Emaum Abdulla made Abdulalim, Emaum; and me Clerk. It was Emaum Abdulalim’s wishes, that after his death Sourdeen should become Emaum, which took place; and I became under Priester, and Achmat was second of Emaum Sourdeen; so that at his death Achmat was Emaum. All I have to add is that from that time until now, I have never had reason of complain of our regulations. My prayers and supplications are for the welfare of our country and King, and I constantly offer up my prayers that the Almighty may shower down his blessings and prosperity on our Emaum, and all the worthy gentlemen of our Government.

I remain with respect, Honored Gentlemen,
Your humble servant,
ABDOLBARICK. (43)

In 1825 Imam Medien declared that there were two large mosques and five smaller ones in Cape Town. (44) The smaller ones would most probably be houses with prayer rooms. Imam Achmat confirmed this and added further:

I have officiated for many years, and for the last three I have been high priest. My predecessor, who died about three years ago, was the first to have been allowed to officiate and build a place of worship in Dorpstreet, where I reside. General Craig permitted him to erect it, and allowed the exercise of the Mohametan worship. This had not been permitted by the old Dutch government, but General Janssens gave authority for when the Dutch resumed the government, and when he enlisted the free Malays to serve as soldiers.

What number of places of worship has been erected? -

We have two regular ones that are acknowledged; the other is in Long-street. There was originally but one. The second was erected by a man named Jan; in consequence of a separation, he is not acknowledged by us. There are many persons who officiate as priests and instruct the people but they are not authorized to do so.

What number of people attend your mosque? –
About 50 attend every Friday, and there may be from 80-90 who belong to the mosque. There is no room for their families to attend. (45)

Imam Achmat states quite clearly that there were two established mosques in Cape Town; The Owal Mosque in Dorp Street and the mosque in Long Street. The latter one he states quite clearly was established because all split in the Malay community. It is also implied he would like to be responsible for “acknowledging” mosques and imams, hence his self-styled title, “high priest.” One can also infer from Imam Achmat’s statement that the first mosque, built in the quarry was not recognized as a mosque. He states clearly that the first mosque was the one in Dorp Street.

The Rev. John Campbell, who visited the Cape, wrote a description of the Jumah prayers held on Friday February 11, 1814 in the Auwal mosque.

On Friday, the 11th February, I visited a Mohametan (sic) mosque. The place was small; the floor was covered with green baize, on which sat about a hundred men, chiefly slaves, Malays and Madagascars. All of them wore clean white robes, made in the fashion of shirts, and white pantaloons, with white cotton cloths spread before them, on which they prostrated themselves. They sat in rows, extending from one side of the room to the other. There were six priests, wearing elegant turbans, a chair having three steps up to it, stood at the east end of the place, which had a canopy supported by posts, resembling the tester of a bed without trimmings. Before this chair stood two priests, who chanted something, I suppose in the Malay language, in the chorus of which the people joined. At one part of it the priests held their ears between the finger and the thumb of each hand, continuing to chant, sometimes turning the right elbow upwards and the left downwards, and then the reverse. After this form was ended, one of the priests covered his head and face with a white veil, holding in his hand a long black staff with a silver head, and advanced in front of the chair. When the other had chanted a little, he mounted a step, making a dead halt; after a second chanting he mounted the second step, and in the same way the third, when he sat down upon the chair. He descended in the same manner.

The people were frequently, during this form, prostrating themselves in their ranks as regularly as soldiers exercising. A corpulent priest then standing in the corner, near the chair with his face to the wall, repeated something in a very serious singing manner, when the people appeared particularly solemn; after which the service concluded. (46)

Further confirmation was the statement by Campbell was the statement, “… holding in his hand a long black staff with a silver head …” This “staff” was Tuan Guru’s tonka. The tonka is a staff which the imam holds in his hand during the sermon (khutbah). The silver head is the identification mark of Tuan Guru. Since Campbell visited the mosque in 1814, is clear evidence that the mosque was completed before 1814.

In 1822 William Wilberforce Bird noted that the Malays met in private houses and rooms. It appears that this civil servant was not aware that there were two mosques in Cape Town. It is strange that such a well known civil servant was not aware of the Auwal Mosque was built, so that in 1822 it went unmentioned in an account.

The Malays, who are supposed to amount to nearly three thousand, carry on their devotion in rooms and halls fitted up for the purpose and occasionally in the stone quarries near the town. One of their Imams is said to be a learned man, well versed in the Hebrew and Arabic tongues, and in Al Coran, which he chants with taste and devotion. It must be acknowledged with shame and sorrow, that Mohametanism makes great progress amongst the lower orders at the Cape. But where there is the greatest zeal, there will be the most effect. (47)

Bird clears up a very important point, that in spite of building the Auwal Mosque, the stone quarry continued to be used as a place of assembly and a place for prayer. It could also be because the original mosque was still there, and he simply thought the quarry was used as an “open air” assembly.

Tuan’s Guru’s sons, Abdul Raouf and Abdul Rakiep followed their father, but were only able to become imams when they reached 40. A person by the name of Isaac Muntar who appeared as a witness in this civil action in the civil action of Achmat Sadick and Others vs. Abdul Rakiep or Ragiep, August 28 to September 2, 1873; stated that Imam Abdul Roove was the first imam, although Imam Achmat van Bengalen was the imam but had the step aside when Imam Abdul Roove reach the age of majority (40 years). Witnesses also mentioned that Imam Abdul Rakiep was imam at the same time as his brother. Both of them became imams at the Auwal Mosque.

The court case, Achmat Sadick and Others vs. Abdul Rakiep verified this information, but it calls the mosque in dispute, the Buitengracht Mosque. The civil action was brought by the youngest son of Imam Achmat and Saartje van de Kaap, Achmat Sadick against Tuan Guru’s grandson, Abdul Rakiep, the son of Imam Abdul Roove. The plaintiffs, Achmat Sadick and Others, wanted to evict the Imam Abdul Rakiep, because he had become a Hanafee, since he was taught by Abu Bakr Effendi. Although Imam Abdul Rakiep was awarded the judgment with cost and thus won the civil suit. One could say he won the battle but lost the war, because he actually lost the role of imam of that mosque. The descendants of Tuan Guru moved to the Mosque in Main Road, Claremont, while the Achmat family resumed their roles as imams of the Owal Mosque. This was evidence in the book by Bradlow and Cairns on the family of Imam Achmat. Imam Mochamat Achmat’s will stated that he appointed his son, Amienodien Gamja imam at the “Mohammedan Church” corner of Dorp and Buitengracht Streets. The inference is that the present house on the corner of Buitengracht and Dorp Streets was a later addition.

The mosque that was called in the civil case, the “Buitengracht Mosque” and the Nurul Islam Mosque, located at 134 Buitengracht Street is not the same mosque. The following information will help to explain the history of the two mosques. The land on which the Owal Mosque is located is designated as Erf #2839. This parcel of land was transferred to Coridon van Bengal on September 26, 1794, and was later transferred from the Estate late Coridon van Bengal to Saartjie van de Kaap on February 3, 1809. Coridon was Saartjie’s father. The other lot, which is Erf # 2840 was transferred from Cathryn van de Kaap, the mother of Saartjie van de Kaap, to Saartjie van de Kaap on December 6, 1811. The mosque site is still in the name of Saartjie van De Kaap, when I examined the records at the Deeds Office in Cape Town. The other lot, Erf #2840, was owned by Achmat van Bengalen. That lot was on the corner of Buitengracht and Dorp Streets.

In the 1873 court case , Sedick vs Rakiep (Tuan Guru’s grandson) the Owal Mosque was referred to as the Buitengracht Street Mosque. The mosque at that time was located on the corner of Buitengracht and Dorp Streets.
The present Buitengracht Street mosque is Erf # 2797. (48) The Erf #2797 was transferred by JHM Isleb to Jassar Mohamed Saadien in 1905. Erf #2797 was subidivided into Erf #2797 (Lot B) and Erf # 2796. Erf #2797 or Lot B was later transferred from Jassar Mohamed Saadien to the Nurul Islam Congregation on September 30, 1912. On November 2 1928 The Noorel Islam Congregation sold that lot to Imam Gabebodien Hartley. On June 6, 1939 the property was transferred by Imam Gabebodien Hartley to the Trustees of the British Nizan of Afghanistan Society. This mosque is today called the Nurul Islam mosque. The records of the Deeds office show conclusively that the mosque could only have been built after 1912, when it was transferred to the Nurul Islam Congregation.

The Bulding of the Second Mosque

After the emancipation of the slaves there was a definite spurt in the growth of Islam. This led to further efforts to build another mosque in Cape Town. This mosque was built about 1850 in Chiappini Street.
Mayson describes a visit to the mosque in 1854:

There is only one mosque in Cape Town. This large, substantial but plain and unminaretted edifice has lately been erected with the concurrence and favoured by the patronage of the municipal authorities: with an implied guarantee that it was to be used by the Mohametans in common, irrespective of their misunderstandings. It is occupied by one section of them only. A smaller mosque was used before the present one was built; before its erection the Malays performed their religious services in the adjacent stone quarries. There are about twelve chapels or mosjids, for daily service, in the houses of superior priest. Each of these, as well as the mosque, contains a painted and arched recess at the end opposite the entrance, indicating the direction of Mecca; and is scrupulously clean. (49)

This description applies to the second mosque built in Cape Town. This mosque is the Jamia Mosque, located on the corner of Chiappini and Castle Streets, constructed about or before 1850.

This mosque site was granted by the British authorities in co-operation and exchange for their support in the border War of 1846 against the Xhosas. A description of their participation was given in an earlier chapter. Queen Victoria made good her promise of the mosque site as well as the rights to the land area in Faure, near the site of Sheik Joseph’s grave. The mosque site was originally owned by the Municipality of Cape Town and transferred to Imam Abdul Wahab in 1857. The two sites were granted in freehold to the Muslim community under the trusteeship of Imam Abdul Wahab. This mosque, because of the grant of the British authorities, had the British Coat of Arms above the Mighrab (or niche), and is the only one that had the feathers of the Prince of Wales above the mimbar (altar). For this reason the Jamia Mosque was sometimes called the Queen Victoria Mosque. (50) The first imam was Imam Abdulbazier, who was only Imam for a few months. He was succeeded by Imam Abdul Wahab in 1852.

This was the same mosque which Lady Duff Gordon visited on Friday, March 21, 1862.

I had just come from prayer, at the Mosque in Chiappini Street, on the outskirts of the town. A most striking site. A large room like the country ballroom with glass chandeliers, carpeted with a common carpet, all but a space at the entrance, railed off for shoes; the Caaba and pulpit at one end; over the niche, a crescent painted; and over the entrance door a crescent, an Arabic inscription and the royal arms of England! A fat jolly Mollah looked amazed as I ascended the steps; but when I touched my forehead and said ‘Salaam, Aleikoom,’ he laughed and said, ‘Salaam, Salaam,’ come in, come in! The faithful poured in, all neatly dressed in their loose drab trousers, blue jackets, and red handkerchiefs on their heads; they left their wooden clogs in company with my shoes, and proceeded, as it appeared to strip. Off with jackets, waistcoats, and trousers, with the dexterity of a pantomime transformation; the red handkerchief was replaced by a white skull-cap, and a long large white shirt and full white drawers flowed around them. How it had all been stuffed into the trim jacket and trousers, one could not conceive. Gay sashes and scarves were pulled out of a little bundle in a clean silk handkerchief and a towel served as prayer-carpet. In a moment the whole scene was as oriental as if the Hansom cab I had come in existed no more. Women suckled their children, and boys played among the clogs and shoes, all the time, and I sat on the floor in a remote corner. The chanting was very fine, and the whole ceremony decorous and solemn. It lasted an hour; then the little heaps of garments were put on, and the congregation dispersed, each man first laying a penny on a curious little old Dutch-looking, heavy ironbound chest, which stood in the middle of the room. (51)

In my interview with Imam M. Nacerodien in 1976 he stated that the mimbar and the tonga were the original ones that were used when the mosque opened in 1857. He claimed that the mosque was opened on November 9, 1857. He stated that this statement would be verified by an article in the Cape Argus of November 9, 1957, when they celebrated the 100th anniversary of the founding of the Jameah Mosque. Unfortunately I have not been able to verify these dates and the information.

The mosques in Cape Town were built in the same styles as the mosques in the East or in other Islamic countries. One reason for this could be the cost of building a mosque and the financial state of the Muslims. In 1861 an article on “Islam at the Cape” which appeared in the Cape Monthly Magazine, an unknown observer gives the following description about the Muslims of Cape Town:

Their mosques are assimulated externally as near as may be, to the style of Christian churches of the locality, and have precisely the appearance of the ‘Bethel’ of some English country place designed by the village carpenter. These structures are called, even by the Dutch, ‘Islamsche Kerk’, and we all remember that the priests, although they were probably put up to it, as a political manoeuvre, did actually petition the Colonial Parliament for a share of the sums voted for Ecclesiastical purposes.

The original building gave the appearance of a church. The only explanation I can offer for this is that the architect or the draughtsman was familiar with the appearance of a church and had never seen mosque.
A few years later a fourth mosque was built in Claremont. This mosque was built about 1855 (53) the site was donated by a Slamdien for the building of a mosque. A member of Abdul Raouf’s family became the imam at this mosque, and the trustee of the mosque was to be the imam at the Auwal Mosque in Dorp Street. Tuan Guru’s family became imams at this mosque. Their involvement at the Owal Mosque may have ended with the court case of Sedick vs Rakiep.

The evidence of the civil case, Sadick Achmet and Others vs. Abdol Rakiep indicated there was no Hanafee Mosque at the Cape by 1873. The Hanafee congregation decided to build a mosque. On December 12, 1881 Erf #2627 in Long Street was transferred from John Coenraad Wicht to the Moslem Sect Aghanaf. This mosque was completed shortly after it was acquired.

This has been an attempt to delineate the efforts to build mosques in Cape Town to serve the large and growing Muslim population during the administration of the British Government. Starting from a negative attitude in 1797 and developing towards a positive position, with the granting of the first mosque site in 1806. This grant acknowledged the Malays as an integral part of the population and de facto, their right to practice their own religion. Whether it was in fact an open admission of freedom of religion, which it appears to be, or it was an attempt to show the judicious and humanitarian attitude of the British authorities, is not clear. The development of Islam continued to grow and foster, and although it was a common policy of the British to grant church sites for all denominations, the Malays decided to apply for sites to ensure that this privilege applied to them as well. In spite of Theal’s assertion that another site was granted during the rule of Somerset, I have been unable to find any evidence of a mosque built during his administration. On the other hand, it may refer to the site of the Auwal Mosque. This site was not granted by Somerset, but he may have given them permission to build the mosque.

The last two sites were definitely an attempt by the British to offer the Malays complete freedom to practice their religion. British policies during this period seemed to have been more liberal, and definitely a positive reaction to a previous negative position as far as the administrations of various governors, and the Colonial Office, were concerned.

Footnotes:

1. S.A. Rochlin, “The First Mosque at the Cape,” South African Journal of Science, XXXIII (March, 1937) pp 1100-1105.
2. F.R. Bradlow and M. Cairns, The Early Cape Muslims, (Cape Town: Balkema 1978)
3. I.D. du Plessis, “The Cape Malays, (Cape Town: Balkema, 1972)
4. Roos, The Plakaat Books of the Cape.
5. Tuan Guru
6. Charles Peter Thunberg, Travels in Europe, Africa and Asia Made Between the Years 1770 and 1779. 4 vols. (London: Richardson, Cornhill and Egerton, 1796) I, pp. 132-4.
7. George Forster, A Voyage Round the World. pp. 60-61.
8. Moodie, The Record.
9. Ibid.
10. Mirza Abu Taleb Khan, Travels in Asia, Africa and Europe, I, p. 68.
11. De Mist, Memorandum.
12. Records, V, p. 120.
13. John Barrow, An Account of Travels into the Interior of Southern Africa in the Years 1797 and 1798. (London: T. Cadell & W. Davies, 1801) p. 427.
14. Cape Archives A602/9, Book No. 9, Hudson S.E., Manuscript Diary
16. Cape Archives, BO/154, Item 17, Incoming letter
17. Cape Archives, BO/154, item 236, Covering letter
18. It was because of this commitment that the Malays were formed into the Javanese or Malay Artillery, as it has been indicated in an earlier chapter.
19. George M. Theal, The History of South Africa Since 1795, (London: George Allen & Unwin, 1915) 5 vols. I, p. 4190.
20. South African Commercial Advertiser, February 27, 1836. The letter by Prince Abdul Raouf is printed in full.
21. Achmat Zadick and Others vs. Abdul Ragiep, August 28, 1873. and the civil case of Mahmat vs. Danie, 1866
22. George M. Theal, The History of South Africa Since 1795, (London: George Allen & Unwin, 1915) 5 vols. I, p. 419-420
23. This was called the Palm Tree Mosque (also known as the church of Jan van Bhougies). It was called a langar since it was located in the “Lange Straat” or Long Street. See another explanation in this chapter.
24. “Encyclopedia of Islam,” E.J. Brill, (London: 1913)
25. Burchell, Travels in the Interior of Southern Africa, p. 55.
26. The information was obtained from records at the Deeds Office in Cape Town. The transfer took place on October 25, 1811. The house was later transferred from Frans van Bengal to Jan van Bhougies.
27. The will was written in Malayu using the Arabic script. It was witnessed by Frans van Bengalen on May 2, 1807.
28. Leibrandt, Requesten, p. 463.
29. The sixth month of the Islamic calendar
30. It is approximately September 30th 1803.
31. O.W.B.P. On Whom Be Praised refers to the Prophet Muhamad. Whenever his name is mention, a Muslim would say O.W.B.P.
32. This Qur’an is currently in the possession of my brother Imam Yaseen Harris. It was passed from Jan van Bhoughies to Imam Mammat. It was owned by my grandfather Hajjie Mohummad Ghanief Harries and then my father Imam Sulaiman Harris. We were fortunately to find a person who was able to translate the Malay, Hajjie Ahmad Brown.
33. He was appointed Imam after the death of Jan van Bhougies at the Palm Street Mosque.
34. Eric Aspeling, pp. 16-17. Maximilien Kollisch, pp. 36-37.
35. Ibid,
36. Assistant imams
37. This mosque was called “The Auwal Mosque.”
38. The building of this mosque on the corner of Buitengracht and Dorp Streets has caused some confusion., since the court records of Sadick Achmat and Others vs. Abdul Ragiep of August 28, 1873, refers to this mosque as the Buitengracht Mosque, whereas it was actually the Dorp Street Mosque or Owal Mosque,. The Nurul Islam Mosque in Buitengracht was not the one referred to in the court case. This latter mosque site was only transferred to the Nurul Islam congregation in 1905.
39. British Parliamentary Papers #50 of 1835, pp. 207-210.
40. South African Commercial Advertiser, February 27, 1836. The letter by Prince Abdul Roove is printed in full in this chapter.
41. South African Commercial Advertiser. February 27, 1836.
42. Ibid.
43. Ibid. Similar letters were published from Imam Achmat, Achtardeen and Hagt.
44. British Parliamentary Papers #50 of 1835, pp. 207-210.
45. British Parliamentary Papers, #50 of 1835, pp. 207-210.
46. John Campbell Travels in South Africa, (London: Flagg and Gould, 1816), pp. 327-328.
47. W.W. Bird, The State of the Cape of Good Hope in 1822. p. 68
48. Erf #2797 This lot was first transferred by deed of transfer # 160 on 28th June 1811. This land was transferred 24th October 1905 by JHM Isleb to Jassar Mohamed Saadien. Part of this lot was then sold (Lot B) and became Erf # 2796 by JM Saadien on 30th September 1912 to the Noorel Islam Congregation of Cape Town. Erf # 2796 was then sold on 2nd November 1928 by the Noorel Islam Congregation to Gabebodien Hartley. He then sold it on 6th June 1939 to the Trustees of the British Mizan of Afghanistan Society.
49. John Schofield Mayson, The Malays of Cape Town, (Manchester: John Galt, 1861), pp. 21-22.
50. Mayson, p. 32.
51. Dorothy Fairbridge, ed. , Letters From the Cape by Lady Duff Gordon, (London: Oxford University Press, 1927).
52. Mayson, p. 32.

Representatives of the free burghers on the Court of Justice (the supreme court of judicature) and later on the Council of Policy at the Cape. In the exercise of their functions the burgher councillors were not confined by any standing orders. It was, however, customary for the Council of Policy to confer with them on legislation affecting the burghers, and in some instances retired burgher councillors were also invited to attend preliminary discussions in this regard. Only since about 1780 did the burghers regularly have representation in the Council of Policy.

The first burgher councillor was Steven Jansz Botma, appointed in 1657 to serve on the Court of Justice for a term of one year. After the first year the free burghers were directed to submit a list of names from among which Botma’s successor could be designated. Hendrick Boom was the nominee, but the authorities having increased the number of burgher councillors to two, Botma was retained. One of the two members was to retire in rotation every year. In 1675 the number was increased to three, and in 1686 to six. From the time of Jan van Riebeeck trivial matters came within the purview of the ‘Collegie van Commissarissen van Kleine Saken’, in which two burghers sat with two officials and a secretary.

It had become customary to leave punitive expeditions against the Bushmen in the hands of burgher commandos, and in 1715 the burgher councillors were required to levy the costs of the expeditions from the citizens of Cape Town, the heemraden being responsible for the levy from burghers in the hinterland.

By 1779, under the governorship of Joachim van Plettenberg, agitation among a group of colonists for greater representation in the management of their affairs had gathered considerable momentum. These burghers already referred to themselves as ‘Patriotten’ (patriots). Among the measures they proposed was the appointment of a sufficient number of elected burgher councillors to counterbalance the officials. A strongly worded petition was taken by Tieleman Roos of Paarl and others to the Netherlands . Although this document was even submitted to the States General, it proved of no avail, the Dutch ‘Patriotten’ being at that time in the minority.

The only notable success attained by the petitioners was the concession made by Van Plettenberg in his reply to the Council of Seventeen, that an equal number of burgher councillors and officials could be appointed to the Court of Justice. Neither Van Plettenberg nor the Seventeen would tolerate a position in which the Council of Policy would virtually be dominated by the burgher councillors. The system of burgher councillors continued until the first British occupation, and in 1796 the Burgher Senate took the place of burgher councillors.

BIBL. C. Beyers: Die Kaapse Patriotte 1779-1791 (1930); Cambridge history of the British Empire , vol. 8 (1936); G. M.

Theal: History of South Africa , vol. 3, 4 (‘964); Eric A. Walker: A history of South Africa (1928).